Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. (b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents. (c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time. (d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof. (e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor. (f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement. (g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 6 contracts
Samples: Credit Agreement (Atlantic Broadband Finance, LLC), Credit Agreement (Language Line Holdings, Inc.), Credit Agreement (Language Line Costa Rica, LLC)
Payment of Expenses and Taxes; Indemnification. (a) Each Borrower agrees separately (subject to pay Section 9.5(b)) (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold harmless each Lender and the Administrative Agent from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to such Borrower, and (iv) to indemnify and hold harmless each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (the “Related Parties” and collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the actual or proposed use of proceeds, the other Loan Documents and any such other documents.
, the failure of such Borrower to comply with rules, regulations and laws regarding the business of mutual funds, such Borrower’s false or incorrect representations or warranties or other information provided in connection with this Agreement, or failure of such Borrower to comply with covenants contained herein or in any Note in a timely manner (c) To all the foregoing in this clause (iv), collectively, the “indemnified liabilities”), provided, that such Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities to the extent that a Credit arising from (A) with respect to any Indemnified Party, the gross negligence or willful misconduct of such Indemnified Party fails or its Related Parties, or such Indemnified Party’s failure to pay comply with any amount required to be paid by them to an Agent material law or an Issuing Lender under paragraph (a) regulation governing the transactions contemplated hereby, or (bB) of disputes arising between or among the Indemnified Parties with respect to this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as Agreement. The agreements in this Section shall survive termination of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share Commitments and repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(db) Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that arises pursuant to Section 9.5(a) is not attributable to any particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent permitted by applicable lawany such obligation to reimburse or indemnify any Indemnified Party is attributable to one or more Borrowers, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential then such reimbursement or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 indemnification shall be payable promptly after written demand made by each such Borrower to the extent of its liability therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 3 contracts
Samples: Credit Agreement (Schroder Series Trust), Credit Agreement (Schroder Capital Funds (Delaware)), Credit Agreement (Schroder Global Series Trust)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Lender for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Lender, (ii) to reimburse the Lender for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Lender, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold the Lender harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold the Lender (and their respective affiliates, directors, officers, agents and employees (collectively with the Lender, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv), collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense or indemnity payment is soughtBorrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by willful misconduct of such Indemnified Party, (B) disputes arising between or on behalf of Borrower among the Lender, or any of Borrower’s Subsidiaries in connection (C) with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided respect to any Indemnitee pursuant such Indemnified Party, the failure of such Indemnified Party (and its Affiliates) to comply with any Requirement of Law. The agreements in this Section 8.5(a) shall survive the termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 3 contracts
Samples: Credit Agreement Amendment (Kayne Anderson MLP Investment CO), Credit Agreement (Kayne Anderson MLP Investment CO), Credit Agreement (Kayne Anderson MLP Investment CO)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and WCM for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Credit Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including together with the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (iib) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes and each Lenderany other Credit Document, including, without limitation, the fees and each disbursements of their Affiliatescounsel to the Administrative Agent and to the Lenders (including reasonable allocated costs of in-house legal counsel of Administrative Agent), officers(c) on demand, directorsto pay, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender, the Administrative Agent and WCM harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, paying stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To defend, indemnify and hold harmless the extent permitted by applicable law, no Credit Party shall assertAdministrative Agent and the Lenders, and each Credit Party hereby waivestheir respective Affiliates and their respective employees, any claim agents, officers and directors, from and against any Indemniteeand all claims, on any theory demands, penalties, fines, liabilities, settlements, damages, costs and expenses of liabilitywhatever kind or nature known or unknown, for specialcontingent or otherwise, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, or in connection withany way relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Credit Parties, any Investment Loan Subsidiary or the Properties, or as a result ofany orders, this Agreement requirements or demands of Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor, and (e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agentto pay, the Lenders and each Issuer forindemnify, and hold each Lender, the Administrative AgentAgent and WCM and their Affiliates, the Lenders employees, officers and each Issuing Lender directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the use, or proposed use, of proceeds of the Loans or Letters of Credit, (f) to pay, indemnify, and hold each Lender, the Administrative Agent and WCM and their Affiliates, employees, officers and directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever to the extent arising from third party claims for brokerage commissionswith respect to the execution, fees delivery, enforcement, performance and administration of the Credit Documents and any such other compensation made against documents; and (g) to pay, indemnify, and hold each Lender, the Administrative Agent and WCM and their Affiliates, employees, officers and directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever to the extent arising from or related to any Investment Loan Subsidiary (all of the foregoing, collectively, the “indemnified liabilities”); provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent, the Lenders and the Issuing Lenders for WCM or any broker, finder or consultant Lender with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full willful misconduct of the ObligationsAdministrative Agent, (ii) WCM or such Lender, as determined by a court of competent jurisdiction. The agreements in this Section 9.5 shall survive the release of all or any portion repayment of the Collateral Loans, Notes, LOC Obligations and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any all other Credit Documentamounts payable hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Capitalsource Inc), Credit Agreement (Capitalsource Inc), Credit Agreement (Capitalsource Inc)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and WCM for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Credit Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including together with the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (iib) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes and each Lenderany other Credit Document, including, without limitation, the reasonable fees and each disbursements of their Affiliatescounsel to the Administrative Agent and to the Lenders (including reasonable allocated costs of in-house legal counsel of Administrative Agent), officers(c) on demand, directorsto pay, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender, the Administrative Agent and WCM harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, paying stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To defend, indemnify and hold harmless the extent permitted by applicable law, no Credit Party shall assertAdministrative Agent and the Lenders, and each Credit Party hereby waivestheir respective Affiliates and their respective employees, any claim agents, officers and directors, from and against any Indemniteeand all claims, on any theory demands, penalties, fines, liabilities, settlements, damages, costs and expenses of liabilitywhatever kind or nature known or unknown, for specialcontingent or otherwise, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, or in connection withany way relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Credit Parties or the Properties, or as a result ofany orders, this Agreement requirements or demands of Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor, and (e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agentto pay, the Lenders and each Issuer forindemnify, and hold each Lender, the Administrative AgentAgent and WCM and their Affiliates, the Lenders employees, officers and each Issuing Lender directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the use, or proposed use, of proceeds of the Loans or Letters of Credit, and (f) to pay, indemnify, and hold each Lender, the Administrative Agent and WCM and their Affiliates, employees, officers and directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever to the extent arising from third party claims for brokerage commissionswith respect to the execution, fees delivery, enforcement, performance and administration of the Credit Documents and any such other compensation made against documents (all of the foregoing, collectively, the “indemnified liabilities”); provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent, the Lenders and the Issuing Lenders for WCM or any broker, finder or consultant Lender with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full willful misconduct of the ObligationsAdministrative Agent, (ii) WCM or such Lender, as determined by a court of competent jurisdiction. The agreements in this Section 9.5 shall survive the release of all or any portion repayment of the Collateral Loans, Notes, LOC Obligations and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any all other Credit Documentamounts payable hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Capitalsource Inc), Credit Agreement (Capitalsource Inc), Credit Agreement (Capitalsource Inc)
Payment of Expenses and Taxes; Indemnification. The Borrower and each other Loan Party agrees: (a) Borrower agrees to pay (i) or reimburse each Agent and each Lender for all their reasonable and documented out-of-pocket costs, fees and expenses incurred by each in connection with the development, negotiation, preparation, execution, delivery and administration of, and any amendment, supplement, or other modification to, and any waiver of any provision of, and any consent under, this Loan Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including without limitation such costs, fees and expenses related to due diligence, appraisal costs, lien searches and filing fees and such costs, fees and expenses in relation to any payoff letter or other termination agreement and associated lien releases, and including the reasonable fees, disbursements and other charges and disbursements of one primary external counsel for to the Agents and the Lenders taken as a whole, including reasonably necessary special counsel and local counsel in connection with each applicable jurisdiction, and external tax professionals, accounting professionals, and other consultants and advisors, in all cases whether or not the syndication of the credit facilities provided for herein, the preparation Closing Date occurs and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby are consummated; (b) to pay or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) reimburse each Agent and each Lender for all reasonable of their documented out-of-pocket costs, fees and expenses incurred thereby and by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, their Affiliates in connection with the enforcement or protection preservation of their any rights under this Loan Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out ofthereof, in connection withwith any action to protect, collect, sell, liquidate or as a result of (i) the execution or delivery dispose of any Credit Document or any other agreement or instrument contemplated herebyCollateral, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented and in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation arbitration or other contest, dispute, suit, or proceeding relating to any of the foregoing, whether based on contractincluding in each case the fees, tort or any disbursements and other theory and regardless charges of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available one external counsel to the extent that such lossesAgents and the Lenders taken as a whole (and, claimsif reasonably necessary, damages(x) one local counsel in each relevant jurisdiction and (y) any special counsel), liabilities or related expenses are determined by external tax professionals, accounting professionals, and other consultants and advisors of the Agents and the Lenders taken as a court of competent jurisdiction by final whole; (c) to pay, indemnify, and nonappealable judgment to have resulted hold harmless each Agent and each Lender from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Loan Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) to pay or reimburse each Agent and each Lender for all reasonable fees, costs and expenses incurred in exercising their rights under Section 8.02 and Section 8.16 and to pay and reimburse each Lender for all reasonable fees and expenses incurred in exercising its rights under Section 8.17; and (e) to pay, indemnify and hold harmless each Agent, each Lender, each other Secured Party, and the respective Related Parties of each of them, from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented out-of-pocket costs, expenses and disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of one primary external counsel, with respect to the negotiation, execution, delivery, enforcement, performance and administration of this Loan Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to any Environmental Claim that relates to any Loan Party or any property owned or leased by any Loan Party, the violation of, noncompliance with or liability under, any Environmental Law by any Loan Party or any property owned or leased by any Loan Party or any actual or alleged presence of Hazardous Materials on any property owned or leased by any Loan Party or resulting from any Loan Party in connection with the operations of any Loan Party, Subsidiary of any Loan Party or any of their Real Property (all the foregoing in this clause (e), collectively, the “Indemnified Liabilities”); provided, however, that the Loan Parties shall have no obligation under this clause (e) to either Agent, any Lender, any other Secured Party, or any Related Party of any of them, for Indemnified Liabilities arising from (A) gross negligence or willful misconduct of the party to be indemnified, as determined by a final, non-appealable order of a court of competent jurisdiction or (B) any claim resulting from one party to be indemnified against any other party to be indemnified and that does not involve an act or omission of Borrower, any Guarantor or any of their respective Subsidiaries or Affiliates or (C) a material breach of any obligations under any Loan Document by such indemnified party, as determined by a final, non-appealable order of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive repayment of the Loans and all other amounts payable hereunder and the termination of this Loan Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Loan Party shall assert, and each Credit Loan Party hereby waives, any claim against any IndemniteeAgent, any Lender, any other Secured Party, and the Related Parties of each of them, on any theory of liability, for any general or consequential damages, or direct or indirect damages, in each case of any kind, and in each case whether special, indirectreliance, consequential punitive, compensatory, benefit of the bargain, “cover”, expectancy, exemplary, incidental, “lost profits”, or punitive similar or other damages (as opposed to direct including, but not limited to, damages resulting from loss of profits, revenue or business opportunity, business impact or anticipated savings) or multiples of damages, other than direct, foreseeable, actual out-of-pocket damages) , arising out of, in connection with, or as a result of, this Agreement Loan Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit Loan or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent, no other Secured Party, and no Related Party of any of them shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Loan Agreement or the other Loan Documents or the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification hereby or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment thereby, in full the absence of the Obligationswillful misconduct or gross negligence of such Person as determined by a final, (ii) survive the release non-appealable order of all or any portion a court of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentcompetent jurisdiction.
Appears in 2 contracts
Samples: Loan Agreement (Mimedx Group, Inc.), Loan Agreement (Mimedx Group, Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Bank for its reasonable out-of-pocket costs, fees and expenses paid or incurred by each in connection with the development, preparation, negotiation and execution of, and any amendment, supplement or modification to, the Commitment Letter, this Agreement and the other Borrower Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel to the Bank or accountant's fees and including without limitation a fee of Two Hundred Fifty Dollars ($250.00) for any amendment to the Agents in connection with Letter of Credit, all taxes and assessments, recording fees, the syndication letter of credit transfer fee and the fees of any third party consultants which provide services to the Bank performing services as may, from time to time, be required by the Bank, provided that attorney's fees related to the development, preparation, negotiation and execution of the credit facilities provided for hereinCommitment Letter, this Agreement and other documents related to the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or initial transaction shall not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)exceed $25,000, (ii) to reimburse the Bank for all its reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Related Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Bank, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold the Bank harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement or the Related Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant documents with respect to any agreementsuch Borrower, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iiiiv) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.indemnify
Appears in 2 contracts
Samples: Reimbursement and Credit Agreement (Connecticut Water Service Inc / Ct), Reimbursement and Credit Agreement (Connecticut Water Service Inc / Ct)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all out of pocket costs and expenses of the Agent, including the reasonable fees and disbursements of special counsel for the Agent, in connection with the negotiation, preparation, execution and delivery of this Agreement, the Notes, the Borrower Guaranty, the Employee Pledge Agreements, and any other Credit Document, to pay all reasonable out of pocket costs and expenses of the Banks in connection with the enforcement of this Agreement, the Notes, and any other Credit Document, including reasonable attorneys' fees and disbursements arising in connection therewith (whether or not suit is instituted), and also to pay all reasonable actual out-of-pocket expenses incurred by each costs of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents Banks in connection with the syndication of the credit facilities provided for hereinany inspections, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5investigations, or in connection with examinations performed under the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of CreditSecurity Agreement.
(b) The Credit Parties agree Borrower agrees to indemnify the Agents, Agent and the Issuing Lender Banks from and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, against any and all liabilities, losses, claims, damages, liabilities penalties, actions, judgments, costs, expenses (including, without limitation, reasonable attorneys' fees and related expenses, including the reasonable fees, charges and disbursements) or disbursements of any counsel (and environmental consultants kind or professionals) for any Indemniteenature whatsoever which may be imposed on, incurred by by, or asserted against the Agent and the Banks in any Indemnitee arising out litigation, proceeding or investigation instituted or conducted by any Person other than the Borrower with respect to any aspect of, or any transaction contemplated by, or referred to in, or any matter related to, any Loans made hereunder, including, without limitation, in connection with, with the Borrower's servicing role hereunder and any consumer lending or as a result of (i) the execution securities law violations arising from or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties related to the Credit Documents of their respective obligations thereunder or Employee Loans. The Borrower also agrees to pay, and to save the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting Banks harmless from any delay in paying, stamp, excise all stamp and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5Agreement, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderthe Notes, as the case may beBorrower Guaranty, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assertEmployee Pledge Agreements, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document, or any modification hereof or thereof, and all filing and recording fees in connection therewith.
Appears in 2 contracts
Samples: Credit Agreement (Watson Wyatt & Co Holdings), Credit Agreement (Watson Wyatt & Co)
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees to pay The Grantors agree (i) to pay or reimburse the Collateral Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the preparation, negotiation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Agreement Documents and/or Credit Agreement Security Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges expenses and disbursements of legal counsel to the Collateral Agent, and all costs and expenses of the Collateral Agent in connection with the use of IntraLinks, SyndTrak or other similar information transmission systems in connection with this Agreement, the Credit Agreement Documents and/or any Credit Agreement Security Documents, the preservation of the Liens or any rights of the Collateral Agent, and the review of Properties for inclusion as Collateral Properties and the other activities of the Collateral Agent under Section 7.15 of each Credit Agreement and the reasonable fees and disbursements of counsel to the Collateral Agent (including, without limitation, local counsel to the Collateral Agent in each applicable jurisdiction) relating to all such activities (it being understood and agreed that, to the extent any of such services or activities are provided internally by the Collateral Agent, the Borrower shall reimburse the Collateral Agent for such costs and expenses at market rates) (ii) to pay or reimburse the Agents Collateral Agent and the other Secured Parties for all their reasonable costs and expenses incurred in connection with the syndication enforcement or preservation of the credit facilities provided for hereinany rights under this Agreement, the preparation other Credit Agreement Security Documents and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lenderother documents, including the reasonable fees, charges expenses and disbursements of any their respective counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges allocated fees and disbursements expenses of in-house counsel) and any counsel payments in indemnification (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) but solely to the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties extent otherwise indemnifiable pursuant to the Credit Agreement Documents of their respective obligations thereunder or otherwise payable by the consummation of Secured Parties to the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Collateral Agent pursuant to the Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of CreditAgreement Documents), (iii) any actual or alleged presence or release of Hazardous Materials onto pay, atand indemnify and hold harmless the Collateral Agent and the Secured Parties from, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any failure to pay or delay in paying, documentary, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery ofof any of the Credit Agreement Documents, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement and any other Credit Agreement Document, and (iv) to the extent not already covered by any of the preceding subsections, to pay or reimburse the fees and disbursements of counsel to the Collateral Agent and any Secured Party incurred in connection with the representation of the Collateral Agent, or such Secured Party in any matter relating to or arising out of any bankruptcy or other documentsproceeding of the type described in Section 10.1.(e) or 10.1.(f) of each Credit Agreement, including, without limitation, (A) any motion for relief from any stay or similar order, (B) the negotiation, preparation, execution and delivery of any document relating to the Pari Passu Obligations and (C) the negotiation and preparation of any debtor in possession financing or any plan of reorganization of the Borrower or any other Grantor, whether proposed by the Borrower, such Grantor, the Secured Parties or any other Person, and whether such fees and expenses are incurred prior to, during or after the commencement of such proceeding or the confirmation or conclusion of any such proceeding.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5The Grantors agree to indemnify, defend and hold harmless the Collateral Agent, its Affiliates, and the other Secured Parties and their respective directors, officers, shareholders, agents, employees and counsel (each Lender severally agrees referred to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, herein as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as an “Indemnified Party”) from and against any and all of the time that following (collectively, the applicable unreimbursed expense “Indemnified Costs”): losses, costs, claims, penalties, damages, liabilities, deficiencies, judgments or indemnity payment is soughtexpenses of every kind and nature (including, without limitation, amounts paid in settlement, court costs and the fees and disbursements of counsel incurred in connection with any litigation, investigation, claim or proceeding or any advice rendered in connection therewith) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender an Indemnified Party in its capacity as such. For purposes hereofconnection with, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result by reason of, this Agreement any suit, cause of action, claim, arbitration, investigation or any agreement or instrument contemplated herebysettlement, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification consent decree or other protection provided proceeding (the foregoing referred to herein as an “Indemnity Proceeding”) which is in any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) way related directly or any other Credit Document shall indirectly to: (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Agreement Document or the transactions contemplated thereby or the Collateral; (ii) the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Agreement Security Documents and any such other document; (iii) the fact that the Collateral Agent and the Secured Parties are creditors of the Borrower and have or are alleged to have information regarding the financial condition, strategic plans or business operations of the Borrower and the Subsidiaries; (iv) the fact that the Collateral Agent and the Secured Parties are material creditors of the Borrower and are alleged to influence directly or indirectly the business decisions or affairs of the Borrower and the Subsidiaries or their financial condition; (v) the exercise of any right or remedy the Collateral Agent or the Secured Parties may have under this Agreement, any Credit Agreement Document or any Credit Agreement Security Document; provided, however, that the Grantors shall not be obligated to indemnify any Indemnified Party for any acts or omissions of such Indemnified Party in connection with matters described in this clause (v) to the extent arising from the gross negligence or willful misconduct of such Indemnified Party, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (vi) any civil penalty or fine assessed by the OFAC against, and all costs and expenses (including counsel fees and disbursements) incurred in connection with defense thereof by, the Collateral Agent or any Secured Party as a result of conduct of the Borrower, any other Grantor or any other Subsidiary that violates a sanction administered or enforced by the OFAC; or (vii) any violation or non-compliance by the Borrower or any Subsidiary of any Applicable Law (including any Environmental Law) including, but not limited to, any Indemnity Proceeding commenced by (A) the Internal Revenue Service or state taxing authority or (B) any Governmental Authority or other Person under any Environmental Law, including any Indemnity Proceeding commenced by a Governmental Authority or other Person seeking remedial or other action to cause the Borrower or its Subsidiaries (or its respective properties) (or the Collateral Agent and/or the Secured Parties as successors to the Borrower) to be in compliance with such Environmental Laws.
(c) The agreements in this Section 8.9 shall survive (x) repayment of the Pari Passu Obligations and all other amounts payable hereunder and under the other Credit Agreement Documents, (y) the resignation of the Collateral Agent, and (z) any termination of this Agreement and the other Credit Agreement Documents and/or Credit Agreement Security Documents and are in addition to (but without duplication of recovery under), and not in substitution of, any of the other obligations set forth in this Agreement, any Credit Agreement Security Document or any other Credit Agreement Document to which it is a party. The agreements in this Section 8.9 shall apply to all Indemnity Proceedings arising out of, or related to, the foregoing whether or not an Indemnified Party is a named party in such Indemnity Proceeding. In this connection, this indemnification shall cover all costs and expenses of any Indemnified Party in connection with any deposition of any Indemnified Party or compliance with any subpoena (including any subpoena requesting the production of documents). This indemnification shall, among other things, apply to any such proceeding commenced by other creditors of the Borrower or any Affiliate (as defined in the Credit Agreements), any shareholder of the Borrower or any Affiliate (as defined in the Credit Agreements) (whether such shareholder(s) are prosecuting such proceeding in the Borrower’s individual capacity or derivatively on behalf of the Borrower), any account debtor of the Borrower or any Affiliate (as defined in the Credit Agreements) or by any Governmental Authority. This indemnification shall apply to any Indemnity Proceeding arising during the pendency of any bankruptcy proceeding filed by or against the Borrower and/or any Subsidiary. All out of pocket fees and expenses of, and all amounts paid to third persons by, an Indemnified Party shall be advanced by the Borrower at the request of such Indemnified Party notwithstanding any claim or assertion by the Borrower that such Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking by such Indemnified Party that such Indemnified Party will reimburse the Borrower if it is actually and finally determined by a court of competent jurisdiction that such Indemnified Party is not so entitled to indemnification hereunder. An Indemnified Party may conduct its own investigation and defense of, and may formulate its own strategy with respect to, any Indemnity Proceeding covered by this Section and, as provided above, all Indemnified Costs incurred by such Indemnified Party shall be reimbursed by the Borrower. No action taken by legal counsel chosen by an Indemnified Party in investigating or defending against any such Indemnity Proceeding shall vitiate or in any way impair the obligations and duties of the Borrower hereunder to indemnify and hold harmless each such Indemnified Party; provided, however, that if (i) the Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower has provided evidence reasonably satisfactory to such Indemnified Party that the Borrower has the financial wherewithal to reimburse such Indemnified Party for any amount paid by such Indemnified Party with respect to such Indemnity Proceeding, such Indemnified Party shall not settle or compromise any such Indemnity Proceeding without the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, an Indemnified Party may settle or compromise any such Indemnity Proceeding without the prior written consent of the Borrower where (x) no monetary relief is sought against such Indemnified Party in such Indemnity Proceeding or (y) there is an allegation of a violation of law by such Indemnified Party. If and to the extent that the obligations of the Borrower hereunder are unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
Appears in 2 contracts
Samples: Credit Agreement (Diversified Healthcare Trust), Term Loan Agreement (Diversified Healthcare Trust)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent and the Lenders for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including together with the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with Agent and the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Lenders, (iib) to pay or reimburse each Lender and the Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes and each Lenderany such other documents, including, without limitation, the reasonable fees and each disbursements of their Affiliatescounsel to the Agent and to the Lenders (including reasonable allocated costs of in-house legal counsel), officers(c) on demand, directorsto pay, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender and the Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, paying stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document the Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable lawto pay, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer forindemnify, and hold each Lender and the Administrative Agent, the Lenders Agent and each Issuing Lender their Affiliates harmless from and against, any and all claims for brokerage commissionsother liabilities, fees and other compensation made against the Administrative Agentobligations, the Lenders and the Issuing Lenders for losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any broker, finder kind or consultant nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of the Loan Documents and any agreementsuch other documents and the use, arrangement or understanding made by or on behalf proposed use, of proceeds of the Loans (all of the foregoing, collectively, the “indemnified liabilities”); provided, however, that the Borrower shall not have any obligation hereunder to the Agent or any of Borrower’s Subsidiaries in connection Lender with respect to indemnified liabilities arising from the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification gross negligence or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full willful misconduct of the ObligationsAgent or such Lender, (ii) as determined by a court of competent jurisdiction. The agreements in this Section 12.5 shall survive the release of all or any portion repayment of the Collateral Loans, Notes and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any all other Credit Documentamounts payable hereunder.
Appears in 2 contracts
Samples: Revolving Credit Agreement, Revolving Credit Agreement (Solarcity Corp)
Payment of Expenses and Taxes; Indemnification. Each Borrower agrees (a) Borrower agrees to pay or reimburse each Agent and Arranger for all their costs and expenses reasonably incurred (i) all reasonable out-of-pocket but limited, in the case of legal fees and expenses incurred by of each of the Agents Agent and their respective AffiliatesArrangers, including to the reasonable fees, charges and disbursements of one primary counsel for the Agents and Arranger, taken as a whole, and, if deemed reasonably necessary by Administrative Agent, one local counsel to such Persons, taken as a whole, in any relevant jurisdiction) in connection with the syndication due diligence in respect of the credit facilities provided for hereintransactions contemplated by this Agreement, the development, preparation and execution of, and any amendment, supplement, or modification to, this Agreement and the other Credit Documents, including in connection with an initial syndication, and any other documents prepared in connection herewith or therewith, and the consummation, monitoring, oversight and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)and thereby, (iib) to pay or reimburse each Lender and each Agent for all reasonable out-of-pocket their costs and expenses reasonably incurred by (but limited, in the Issuing Lenders in connection with the issuancecase of legal fees and expenses of each Lender and each Agent, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including to the reasonable fees, charges and disbursements of (i) a single primary counsel to Agents and Lenders, taken as a whole, (ii) a single local counsel to Agents and Lenders, taken as a whole, in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and (iii) in the event of any actual or potential conflict of interest, one additional counsel for the Agents, the Issuing Lender or any Lender, each party subject to such conflict) in connection with the exercise, enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, the other Credit Documents and any such other documents, or in connection with the Loans made, or Letters of Credit issued or drawn made hereunder, including all such out-of-pocket costs and expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
Loans, (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold harmless each Indemnitee harmless from, Lender and Agents from any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (cd) To to pay or reimburse Administrative Agent for all reasonable fees, costs and expenses incurred in exercising its rights under Section 8.15 and (e) to pay, indemnify and hold harmless each Lender, Arranger and Agents and their respective Related Parties from and against any and all other liabilities, obligations, losses, damages, fines, fees, penalties, actions, judgments, suits, and reasonable costs, expenses or disbursements of any kind or nature whatsoever, including reasonable fees, disbursements and other charges of counsel (but limited, in the extent that case of such fees, disbursements and other charges, to the reasonable fees, disbursements and other charges of (i) one primary counsel to all Indemnitees (taken as a whole), (ii) if deemed reasonably necessary by Agents, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such Indemnitees (taken as a whole) and (iii) solely in the case of an actual or potential conflict of interest, one additional counsel to each group of similarly situated affected Indemnitees in each applicable jurisdiction), with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents, including any of the foregoing relating to a breach by any Credit Party fails of any representation or warranty in any Credit Document or the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to pay the operations of each Credit Party, any amount required to be paid by them to an Agent of their respective Subsidiaries or an Issuing Lender under paragraph any of their Real Property (a) or all the foregoing in this clause (b) of this subsection 11.5d), each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lendercollectively, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount“Indemnified Liabilities”); provided that the unreimbursed expense Credit Parties shall not have any obligation hereunder to Agents, Arranger or indemnified loss, claim, damage, liability any Lender nor any of their Related Parties with respect to Indemnified Liabilities arising from the gross negligence or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share willful misconduct of the sum party to be indemnified as determined by a final and non-appealable decision of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive repayment of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans all other amounts payable hereunder and Revolving Credit Commitments, as the case may be, at the time.
(d) termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any IndemniteeLender, any Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit the Loans or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify . None of the Administrative AgentLenders, the Lenders and each Issuer forAgents, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Arranger or any of Borrower’s Subsidiaries their respective Related Parties shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification hereby or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligationsthereby, (ii) survive the release of all or any portion of the Collateral and (iii) inure except to the benefit extent any such damages arose from the gross negligence or willful misconduct of any such Lender, Agent, Arranger or Related Person that was at any time an Indemnitee under this Agreement or any other Credit Documentas determined by a final and non-appealable decision of a court of competent jurisdiction.
Appears in 2 contracts
Samples: Credit Agreement (Vireo Growth Inc.), Credit Agreement (Vireo Health International, Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender and the Administrative Agent harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnified Party, (B) disputes arising between or among the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans Lenders and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant (C) with respect to any agreementsuch Indemnified Party, arrangement or understanding made by or on behalf the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section 9.5 shall survive the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Kayne Anderson Energy Total Return Fund, Inc.), Credit Agreement (Kayne Anderson MLP Investment CO)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay within thirty (i30) days after receipt of an invoice therefor, all costs and expenses in connection with the preparation, negotiation, execution, delivery, registration and administration of this Agreement, the Note and the other Credit Documents and any amendment, supplement or modification to or extension or restatement of, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel and of technical advisors and consultants for the Agents in connection Administrative Agent with respect thereto and with respect to advising the syndication Administrative Agent as to its rights and responsibilities under this Agreement; provided, however, that so long as no Event of the credit facilities provided for hereinDefault shall have occurred and be continuing, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof Borrower’s prior written consent (whether or not the transactions contemplated hereby or thereby to be unreasonably withheld) shall be consummated obtained before the Administrative Agent retains a technical advisor or other technical consultant. The Borrower further agrees to pay on demand all losses, costs and expenses, if any such amendment, modification or waiver becomes effective(including reasonable counsel fees and expenses), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the preservation of any rights of the Lenders under, or the enforcement of, or protection legal advice in respect of their the rights in connection with or responsibilities of the Lenders under, this Agreement, the Note and the other Credit Documents, including their rights under this subsection 11.5losses, costs and expenses sustained by the Lenders as a result of any failure by any Borrower to perform or observe its obligations contained herein or in the Note held by the Lenders or in connection with any refinancing or restructuring of the Loans made, or Letters Loan in the nature of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any a “workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) ” The Credit Parties agree Borrower further agrees to indemnify the Agents, the Issuing Lender and each Lenderpay on demand, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstto indemnify, and hold each Indemnitee Lender and the Administrative Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally Each Credit Party agrees to pay to such Agent or pay, indemnify, and hold each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders their respective Affiliates and each Issuer fortheir respective directors, partners, managers, principals, officers, employees, agents, consultants and hold the Administrative Agentrepresentatives (collectively, the Lenders and each Issuing Lender “Indemnified Parties”) harmless from and against, any and all claims for brokerage commissionsother liabilities, fees obligations, losses, damages, penalties, actions, claims, judgments, awards, fines, settlements, suits, costs, charges, expenses or disbursements of any kind or nature whatsoever (irrespective of whether the Indemnified Party is named as a party to any litigation or proceeding and whether it is joint, several or joint and several) with respect to the execution, delivery, enforcement, performance and administration of any Credit Document, any such other compensation made against documents, agreements and Instruments or the Administrative Agenttransactions contemplated thereby, the Lenders and use, or proposed use, of proceeds of the Issuing Lenders for any brokerLoan, finder or consultant otherwise with respect to any agreement, arrangement Project or understanding made by or on behalf of Borrower Property or any activity, occurrence or event thereon or associated therewith (all of Borrower’s Subsidiaries the foregoing, collectively, a “Third Party Claim”), and will reimburse the Indemnified Parties for all costs and expenses (including reasonable attorneys’ fees and expenses) on demand as they are incurred in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that investigation of, preparation for or defense or prosecution of any indemnification pending or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) threatened Third Party Claim or any other Credit Document action or proceeding arising therefrom; provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent or any Lender with respect to Third Party Claims arising from (i) survive payment in full the gross negligence or willful misconduct of the ObligationsAdministrative Agent or any such Lender, as determined by a court of competent jurisdiction in a final and non-appealable judgment or (ii) survive any other loan facility involving the release of all Administrative Agent or any portion of the Collateral a Lender and (iii) inure a Property or Project that does not involve or is not attributable to the benefit of any Person that was at any time an Indemnitee under a Credit Party, a Credit Party’s interest therein or actions with respect thereto, this Agreement or any other Credit Document; provided, further, that (i) each Indemnified Party shall promptly notify the Borrower in writing upon becoming aware of the initiation of any Third Party Claim against it, (ii) the Borrower shall be entitled to participate in the defense of any such Third Party Claim and, if the Borrower so chooses, to assume the defense, at the Borrower’s expense, of any such Third Party Claim with counsel selected by the Borrower (it being understood that any Indemnified Party shall have the right to participate in such defense and employ counsel separate from the counsel employed by the Borrower, and that such counsel shall be at the expense of such Indemnified Party unless such Indemnified Party shall have been advised by counsel that there may be legal defenses available to it that are inconsistent with or in addition to those available to the Borrower, in which case such counsel shall be at the Borrower’s expense) and (iii) no Indemnified Party shall settle any Third Party Claim without the Borrower’s prior written consent (such consent not to be unreasonably withheld). The agreements in this Section 10.6 shall survive repayment of the Loan, Note and all other amounts payable hereunder.
Appears in 2 contracts
Samples: Term Loan Facility Agreement (Royal Gold Inc), Term Loan Facility Agreement (Royal Gold Inc)
Payment of Expenses and Taxes; Indemnification. The Company agrees (a) Borrower agrees to pay (i) or reimburse the Collateral Trustee for all its reasonable fees, out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Security Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Collateral Trustee, (iib) to pay or reimburse the Collateral Trustee and the other Credit Agreement Secured Parties for all their reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Security Documents and any such other documents, including all such out-of-pocket expenses incurred during any workoutthe fees, restructuring or negotiations in respect disbursements and other charges of such Loans or Letters of Credit.
counsel to the Collateral Trustee and the other Credit Agreement Secured Parties, (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated herebyCollateral Trustee, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or Secured Parties from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Security Documents and any Credit Document such other documents and (d) to pay, indemnify and hold harmless the Collateral Trustee, each co-trustee and the other Secured Parties and their respective directors, officers, employees, trustees and agents from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel, with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Security Documents and any such other documents.
(c) To , including any of the extent that a Credit Party fails foregoing relating to pay the violation of, noncompliance with or liability under, any amount required Environmental Law or any actual or alleged presence of Materials of Environmental Concern applicable to be paid by them the operations of the Company, any of its Subsidiaries or any of its property except in each case with respect to an Agent or an Issuing Lender under paragraph the costs and expenses of the type described in the foregoing clauses (a) or and (b) of (all the foregoing in this subsection 11.5clause (d), each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lendercollectively, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount“indemnified liabilities”); provided that the unreimbursed expense Grantors shall have no obligation hereunder to the Collateral Trustee or any other Secured Party nor any of their respective directors, officers, employees and agents with respect to indemnified lossliabilities arising from (i) the bad faith, claimgross negligence or willful misconduct of the party to be indemnified (in each case as determined by a final non-appealable order by a court of competent jurisdiction). By accepting the benefits of this Agreement, damageeach of the holders of Secured Obligations (other than the Collateral Trustee) severally agrees (i) to pay and reimburse the Collateral Trustee and each co-trustee, liability or related expenseon demand, as in the case may be, was incurred by or asserted against such Agent or such Issuing Lender in amount of its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined share from time to time (based upon its share of on the sum of the aggregate principal amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit CommitmentsSecured Obligations of such Secured Party), as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, of any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, reasonable fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect expenses referred to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentSecurity Document securing Obligations owed to such Secured Parties and/or any other fees due to and expenses incurred by the Collateral Trustee and each co-trustee in connection with performance of its duties hereunder, the administration of any Security Document and the enforcement and protection of the rights of the Collateral Trustee and the Secured Parties which shall not have been paid or reimbursed by the Company or paid from the proceeds of Collateral as provided herein and (ii) to indemnify and hold harmless the Collateral Trustee and each co-trustee and their affiliates and each and all of their respective directors, officers, partners, trustees, employees, attorneys and agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Trustee and each co-trustee in connection with the execution, delivery, performance, preparation and administration of this Agreement or any other Security Document or the enforcement and protection of the rights of the Secured Parties, to the extent the same shall not have been paid or reimbursed by the Company or paid from the proceeds of Collateral as provided herein. The agreements in this Section 8.9 shall survive repayment of the Secured Obligations and all other amounts payable hereunder and under the other Secured Debt Documents and the removal or resignation of the Collateral Trustee.
Appears in 2 contracts
Samples: Collateral Agency and Intercreditor Agreement, Collateral Agency and Intercreditor Agreement (Intelsat S.A.)
Payment of Expenses and Taxes; Indemnification. (a) Each Borrower agrees severally, and not jointly or jointly and severally, (subject to pay Section 9.5(b)) (i) all to reimburse, according to its Pro Rata Allocation, the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents Administrative Agent; provided that any such fees and disbursements described in this clause (i) that are incurred in connection with the syndication initial closing of this Agreement on the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Closing Date shall be consummated subject to any cap set forth in the Engagement Letter dated as of December 10, 2014 among each Fund on behalf of itself or any such amendmenta series thereof that is a Borrower, modification or waiver becomes effective)X.X. Xxxxxx Securities LLC and JPMorgan Chase Bank, N.A., (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold harmless each Lender and the Administrative Agent from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to such Borrower, and (iv) to indemnify and hold harmless each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees) incurred by any Indemnified Party or asserted against any Indemnified Party by any third party or by any Fund or the Borrower and arising from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the actual or proposed use of proceeds, the other Loan Documents and any such other documents.
, the failure of such Borrower to comply with rules, regulations and laws regarding the business of mutual funds, such Borrower’s false or incorrect representations or warranties or other information provided in connection with this Agreement, or failure of such Borrower to comply with covenants contained herein or in any Note in a timely manner (c) To all the foregoing in this clause (iv), collectively, the “indemnified liabilities”), provided, that such Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5arising from, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any such Indemnified Party. The agreements in this Section shall survive termination of Borrower’s Subsidiaries in connection with the transactions contemplated by this AgreementCommitments and repayment of the Loans and all other amounts payable hereunder.
(gb) The Credit Parties agree Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that any indemnification or other protection provided arises pursuant to Section 9.5(a) is not attributable to any Indemnitee pursuant particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent any such obligation to this Agreement (including pursuant reimburse or indemnify any Indemnified Party is attributable to this subsection 11.5) one or any other Credit Document more Borrowers, then such reimbursement or indemnification shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure be made by each such Borrower to the benefit extent of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentits liability therefor.
Appears in 2 contracts
Samples: Credit Agreement (T. Rowe Price Credit Opportunities Fund, Inc.), Credit Agreement (T. Rowe Price Multi-Sector Account Portfolios, Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender and the Administrative Agent harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of- pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnified Party, (B) disputes arising between or among the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans Lenders and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant (C) with respect to any agreementsuch Indemnified Party, arrangement or understanding made by or on behalf the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section 9.5(a) shall survive the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Kayne Anderson Midstream/Energy Fund, Inc.), Credit Agreement (Kayne Anderson Midstream/Energy Fund, Inc.)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees, (a) Borrower agrees to pay (i) or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred by each in connection with due diligence in respect of the Agents transactions contemplated by this Agreement, the development, preparation and their respective Affiliatesexecution of, and any amendment, supplement, or modification to, this Agreement and the other Credit Documents, including in connection with an initial syndication, and any other documents prepared in connection herewith or therewith, and the consummation, monitoring, oversight and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of counsel for to the Agents, (b) to pay or reimburse each Lender and the Agents in connection with the syndication of the credit facilities provided for herein, the preparation all their reasonable and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, the other Credit Documents and any such other documents, or in connection with the Loans made, or Letters of Credit issued or drawn made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each LenderLoans, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, disbursements and other charges of counsel to each Lender and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebyAgents, (iic) any Loan or Letter of Credit or to pay, indemnify, and hold harmless each Lender and the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or Agents from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (cd) To to pay or reimburse Collateral Agent for all reasonable fees, costs and expenses incurred in exercising its rights under Section 8.16 and (e) to pay, indemnify and hold harmless each Lender and the Agents and their respective Related Parties from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented (to the extent that a Credit Party fails available) reasonable out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented (to pay any amount required the extent available) fees, disbursements and other charges of counsel, with respect to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Credit Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable unreimbursed expense to the operations of each Credit Party, any of their respective Subsidiaries or indemnity payment is sought) any of such unpaid amounttheir Real Property (all the foregoing in this clause (e), collectively, the “Indemnified Liabilities”); provided that the unreimbursed expense Credit Parties shall not have any obligation hereunder to the Agents or indemnified loss, claim, damage, liability any Lender nor any of their Related Parties with respect to Indemnified Liabilities arising from the gross negligence or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share willful misconduct of the sum party to be indemnified as determined by a final and non-appealable decision of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive repayment of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans all other amounts payable hereunder and Revolving Credit Commitments, as the case may be, at the time.
(d) termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any IndemniteeLender, any Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit the Loans or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent nor any of their respective Related Parties shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated by this Agreementhereby or thereby.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 2 contracts
Samples: Credit Agreement (PARETEUM Corp), Credit Agreement (Elephant Talk Communications Corp)
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees The Borrowers agree (a) to pay (i) or reimburse the Agent for all reasonable and documented out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the credit facilities provided for hereinother Loan Documents and any other documents prepared in connection herewith or therewith, and the preparation consummation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendmentand thereby, modification or waiver becomes effective)including the reasonable, (ii) all reasonable documented and out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges fees and disbursements of any counsel to the Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrowers prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Agent shall deem appropriate, (b) to pay or reimburse each Lender and the Agent for the Agents, the Issuing Lender or any Lender, all its costs and expenses incurred in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such outthe fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee the Agent and the Lenders harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents; provided that to the extent that the costs and expenses referred to in the foregoing consist of fees, costs and expenses of counsel, Borrowers shall only be obligated to pay such fees, costs and expenses for one firm of counsel for Agent together with the Lenders, and, if necessary, a single firm of local counsel to Administrative Agent together with the Lenders in each appropriate jurisdiction and a single special or regulatory counsel to the extent necessary or appropriate in each specialty area, in each case, incurred in connection with the Loan Documents or related transactions.
(cb) To The Borrowers agree to pay, indemnify, and hold the each Lender and the Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to (i) the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans, (ii) the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party or any of the Mortgaged Properties, or (iii) actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (including the cost of successfully defending itself against a claim brought by a party hereto) (all the foregoing in this clause (b), collectively, the “Indemnified Liabilities”); provided, that the Borrowers shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent that such Indemnified Liabilities are found by a Credit Party fails final and non-appealable decision of a court of competent jurisdiction to pay any amount required to be paid by them to an Agent have resulted from the gross negligence or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnitee. Without limiting the unreimbursed expense or indemnified lossforegoing, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to the extent permitted by applicable law, no Credit Party shall the Borrowers agree not to assert and to cause its Subsidiaries not to assert, and each Credit Party hereby waiveswaive and agree to cause their Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(ec) All amounts due under this subsection 11.5 Section 9.5 shall be payable promptly not later than ten (10) days after written demand therefor.
(f) . The Credit Parties agreements in this Section 9.5 shall indemnify survive the Administrative Agent, payment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders amounts payable hereunder and the Issuing Lenders for any broker, finder resignation or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full removal of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentAgent.
Appears in 2 contracts
Samples: Credit Agreement (Cadiz Inc), Credit Agreement (Cadiz Inc)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) pay or reimburse the Administrative Agent and WFS for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliates, thereby (including the reasonable feesTransactions), charges together with the fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderNotes and any such other documents, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify without limitation the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel to the Administrative Agent and to the Lenders (but limited to one outside counsel and environmental consultants or professionalsone financial advisor for the Administrative Agent (plus one local counsel in each jurisdiction and one regulatory counsel, if necessary) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, and in connection with, or as a result of (i) the execution or delivery case of any Credit Document or any other agreement or instrument contemplated herebyconflict of interest between the Administrative Agent and the Lenders, one additional outside counsel and one additional financial advisor for the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebyLenders (plus one local counsel in each jurisdiction and one regulatory counsel, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Creditnecessary)), (iii) any actual or alleged presence or release of Hazardous Materials onon demand, atto pay, under or from any Mortgaged Property or any other property currently or formerly ownedindemnify, leased or otherwise operated by Borrower or any of its Subsidiariesand hold each Lender, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiariesthe Administrative Agent and WFS harmless from, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, paying stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation consummation, administration or enforcement of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives(iv) to pay, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer forindemnify, and hold each Lender, the Administrative Agent, the Lenders Agent and WFS and each Issuing Lender of their respective Affiliates, employees, agents, attorneys, officers and directors (each an “Indemnified Person”) harmless from and against, any and all claims other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (but limited in the case of counsel and financial advisors to one outside counsel and one financial advisor for brokerage commissions, fees and other compensation made against the Administrative AgentAgent (plus local counsel in each jurisdiction and one regulatory counsel, if necessary, and in the case of any conflict of interest between the Administrative Agent and the Lenders, one outside counsel and financial advisor for the Lenders (plus one local counsel in each jurisdiction and the Issuing Lenders for any brokerone regulatory counsel, finder or consultant if necessary) with respect to the execution, delivery, enforcement, performance or administration of the Credit Documents or any agreementsuch other documents and the use, arrangement or understanding made proposed use, of proceeds of the Loans or otherwise relating in any way to any of the foregoing and the negotiation and consummation of the Transactions and the Debt Restructuring (all of the foregoing, collectively, “Indemnified Liabilities”); provided that the Borrower shall not have any obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of such Indemnified Person, as determined in a final, non-appealable judgment by a court of competent jurisdiction.
(b) The Borrower further agrees to defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims (including claims of third parties), demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or on behalf nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation or alleged violation of, noncompliance or alleged noncompliance with, or liability under, any Environmental Law applicable to the operations of the Borrower or any of Borrowerits Subsidiaries, the Properties or any other location, or any orders, requirements or demands of Governmental Authorities related thereto, including attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor, as determined by a final and non-appealable decision of a court of competent jurisdiction. Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries in connection not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with the transactions contemplated respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by this Agreementstatute or otherwise against any Indemnified Parties.
(gc) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full Each of the Obligationsparties hereto hereby irrevocably and unconditionally waives, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of maximum extent not prohibited by law, any Person that was at right it may have to claim or recover in any time an Indemnitee under legal action or proceeding relating to this Agreement or any other Credit Document, any special, exemplary, punitive or consequential damages.
(d) The agreements in this Section 9.5 shall survive repayment of the Loans, Notes and all other amounts payable hereunder.
Appears in 2 contracts
Samples: Credit Agreement (American Capital, LTD), Credit Agreement (American Capital, LTD)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses (other than Taxes) incurred by each in connection with the syndication, preparation, negotiation and execution of, and any amendment, waiver, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of this Agreement and the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges and disbursements of one counsel to the Agents and, if necessary, one local counsel in any applicable jurisdiction, and, solely in the case of an actual or perceived conflict of interest, one additional firm of counsel for the Agents in connection with the syndication each group of the credit facilities provided for hereinaffected Indemnified Parties, (b) to pay or reimburse each Lender, the preparation Collateral Agent and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) Administrative Agent for all its reasonable and documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and rights (iiiincluding workout proceedings) all reasonable out-of-pocket expenses incurred by the Agentsunder this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one counsel to the Agents and Lenders and, if necessary, one local counsel in any applicable jurisdiction, and, solely in the case of an actual or perceived conflict of interest, one additional firm of counsel for each group of affected Indemnified Parties and (c) to pay, indemnify, and hold harmless each Lender, the Collateral Agent and the Administrative Agent and their respective directors, officers, employees, trustees, agents and affiliates (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any counsel for the Agentskind or nature whatsoever, the Issuing Lender excluding any Taxes (other than Taxes representing losses or damages with respect to any non-Tax claims), whether brought by any Credit Party, any stockholder or creditor of any Credit Party, or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expensesother Person, including the reasonable fees, disbursements and other charges of one counsel to the Indemnified Parties and, if necessary, one local counsel in any applicable jurisdiction, and, solely in the case of an actual or perceived conflict of interest, one additional firm of counsel for each group of affected Indemnified Parties, with respect to the execution, delivery, enforcement, performance (and, with respect to each Agent and disbursements its directors, officers, employees, trustees and agents, syndication, administration of any counsel (and environmental consultants or professionalsthis Agreement) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents and any actual or proposed use of their respective obligations thereunder or the consummation proceeds of any Loan, including any of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented foregoing in connection with such demand do not strictly comply with the terms or arising out of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials at, on, atunder, under to or from any Mortgaged Property assets or any other property currently or formerly properties owned, leased or otherwise operated by any Credit Party or any of its Subsidiaries or any Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such assets or properties of any Credit Party or any of its Subsidiaries (all the foregoing in this clause (c), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to Indemnified Parties with respect to indemnified liabilities arising from (x) the gross negligence, bad faith or willful misconduct of the party to be indemnified (as determined in a final non-appealable judgment by a court of competent jurisdiction) or (y) any dispute solely between or among Indemnified Parties other than any claims against an Indemnified Party in its capacity or in fulfilling its role as an administrative agent, collateral agent or arranger or any similar role hereunder (excluding their role as a Lender) and other than any claims arising out of any act or omission of the Borrower or any of its Subsidiaries, or any liability under Environmental Laws related Affiliates. The agreements in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any this Section 13.5 shall survive repayment of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any Loans and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be amounts payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documentshereunder.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 2 contracts
Samples: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse the Agents for all their reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any consent, waiver, amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges of one counsel to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Effective Date (in the case of amounts to be paid on the Effective Date and from time to time thereafter on a quarterly basis), (ii) to pay or reimburse each Lender and the Administrative Agent and the Collateral Agent for all their reasonable and documented costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Credit Documents and any such other documents, including the reasonable fees, disbursements and other charges of one counsel to the Administrative Agent and the Collateral Agent (unless there is an actual or perceived conflict of interest in which case each such Person may retain its own counsel), and one counsel for the Lenders (unless there is an actual or perceived conflict of interest in which case each Lender affected thereby may retain its own counsel), (iii) to pay, indemnify, and hold harmless each Lender and each Agent from any and all reasonable out-of-pocket costs and expenses incurred by each of creating and perfecting Liens in favor of the Agents Collateral Agent, for the benefit of the Secured Parties including recording and their respective Affiliates, including the reasonable filing fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable UCC search fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
title insurance premiums (b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment not directly paid to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (vapplicable insurer) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, and (civ) To to pay, indemnify and hold harmless each Lender, the extent Collateral Agent and the Administrative Agent and their respective Affiliates, directors, officers, employees, trustees, attorneys, advisors and agents from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of one counsel to the Administrative Agent and the Collateral Agent (unless there is an actual or perceived conflict of interest in which case each such Person may retain its own counsel) and one counsel for the Lenders (unless there is an actual or perceived conflict of interest in which case each Lender affected thereby may retain its own counsel), with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents, including any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of the Borrower, any of its Subsidiaries or any of the Real Estate (all the foregoing in this clause (iv), collectively, the “indemnified liabilities”); provided, that a Credit Party fails the Borrower shall have no obligation hereunder to pay the Agents or any amount required Lender nor any of their respective Affiliates, directors, officers, employees, trustees and agents with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the party to be paid by them indemnified or disputes among the Agents, the Lenders and/or their transferees not arising from any act or omission of the Borrower or any other Credit Party. If for any reason the foregoing indemnification is unavailable to an any Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5insufficient to hold it harmless, each Lender severally agrees then the Borrower shall contribute to pay to the amount paid or payable by such Agent or each Revolving Credit such Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) a result of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damagedamage or liability in such proportion as is appropriate to reflect the relative economic interests of (i) Holdings, liability or related expense, as the case may be, was incurred by or asserted against Borrower and its Subsidiaries on the one hand and (ii) such Agent or such Issuing Lender on the other hand in its capacity the matters contemplated by the Credit Documents as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, well as the case may berelative fault of (i) Holdings, at the timeBorrower and its Subsidiaries and (ii) such Agent or such Lender with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(db) To the extent permitted by applicable law, no No Credit Party nor any Person indemnified pursuant to clause (iv) of Section 13.5(a) shall assert, and each Credit Party hereby waives, have any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liability for any brokerpunitive, finder indirect or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under consequential damages resulting from this Agreement or any other Credit DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date).
(c) The agreements in this Section 13.5 shall survive repayment of the Loans and all other amounts payable hereunder.
Appears in 2 contracts
Samples: Credit Agreement (LPL Investment Holdings Inc.), Credit Agreement (LPL Investment Holdings Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender and the Administrative Agent harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnified Party, (B) disputes arising between or among the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans Lenders and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant (C) with respect to any agreementsuch Indemnified Party, arrangement or understanding made by or on behalf the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section 9.5(a) shall survive the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Kayne Anderson Energy Total Return Fund, Inc.), Credit Agreement (Kayne Anderson MLP Investment CO)
Payment of Expenses and Taxes; Indemnification. (a) Each Borrower ---------------------------------------------- agrees severally (ratably, in accordance with its Allocation)
(a) to pay (i) all reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with Administrative Agent; provided, however, that the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges fees and disbursements of any counsel to the Administrative Agent incurred for the Agentspreparation of this Agreement and the other Loan Documents shall be limited as previously agreed to by the Borrowers and the Administrative Agent, (b) to reimburse each Lender and the Issuing Lender or any Lender, Administrative Agent for all its costs and expenses incurred in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement with respect to such Borrower, or in connection with the Loans madeother Loan Documents and any such other documents, or Letters including, without limitation, the fees and disbursements of Credit issued or drawn hereundercounsel to each Lender and of counsel to the Administrative Agent, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bc) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless Lender and the Administrative Agent harmless, from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or reasonably determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay documents with respect to such Agent or each Revolving Credit Lender agrees to pay such Issuing LenderBorrower, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to indemnify and hold each Lender and the extent permitted by applicable lawAdministrative Agent (and their respective affiliates, no Credit Party shall assertdirectors, officers, agents and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages employees (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebycollectively with the Administrative Agent and the Lenders, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e"Indemnified Parties")) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, against any and all claims for brokerage commissionsother ------------------- liabilities, fees and other compensation made against the Administrative Agentobligations, the Lenders and the Issuing Lenders for losses, damages, penalties, actions, judgments, suits, costs, out-of-pocket expenses or disbursements of any broker, finder kind or consultant with respect to any agreement, arrangement nature whatsoever arising from or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by actual or proposed use of proceeds or the execution, delivery, enforcement, performance and administration of this Agreement.
, the other Loan Documents and any such other documents (g) The Credit Parties agree all the foregoing in this clause (d), collectively, the "indemnified liabilities"), ----------------------- provided, that any indemnification or other protection provided such Borrower shall have no obligation hereunder to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) the -------- Administrative Agent or any other Credit Document shall Lender with respect to indemnified liabilities arising from (i) survive payment in full the gross negligence or willful misconduct of the ObligationsAdministrative Agent or any such Lender, (ii) survive disputes arising between or among the release of all Lenders or any portion of the Collateral and (iii) inure the failure of the Administrative Agent (and its Affiliates) or of any Lender to comply with any Requirement of Law. The agreements in this Section shall survive repayment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding any other provision in this Agreement to the benefit of contrary, to the extent any Person that was at obligation to reimburse or indemnify any time an Indemnitee under this Agreement Indemnified Party arises pursuant to Section 9.5(a) is not attributable to any particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Allocation). To the extent any such obligation to reimburse or indemnify any Indemnified Party is attributable to one or more Borrowers, then such reimbursement or indemnification shall be made ratably by each such Borrower any by no other Credit DocumentBorrower.
Appears in 2 contracts
Samples: Credit Agreement (Excelsior Funds Inc), Credit Agreement (Excelsior Tax Exempt Funds Inc)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender, atthe Syndication Agent and the Administrative Agent harmless, under or from any Mortgaged Property or any other property currently or formerly ownedfrom, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender, the Syndication Agent and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent, the Syndication Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, from the Borrower’s use of proceeds or the commitment, from failure of the Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or willful misconduct of such Indemnified Party as finally determined in a nonappealable judgment by a court of competent jurisdiction, (B) disputes arising between or among the Lenders, the Syndication Agent and the Administrative Agent, or (C) with respect to any such Indemnified Party, the failure of such Indemnified Party (and its Affiliates) to comply with any Requirement of Law. The agreements in this Section 9.5 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(cb) To the extent that a Credit Party the Borrower fails to pay any amount required to be paid by them it to an the Administrative Agent or an Issuing any Lender under paragraph (a) or (b) of this subsection 11.5Section, each Lender severally agrees to pay to such the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share Commitment Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such the Administrative Agent or such Issuing Lender in its their capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 2 contracts
Samples: Credit Agreement (Kayne Anderson Midstream/Energy Fund, Inc.), Credit Agreement (Kayne Anderson Midstream/Energy Fund, Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay agrees, (i) to pay or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges of Weil, Gotshal & Xxxxxx LLP and disbursements of one counsel for in each relevant local jurisdiction approved by the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse each Lender, the Collateral Agent and the Administrative Agent for all their reasonable and documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges and disbursements of any one firm or counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder Administrative Agent and the Collateral Agent and, to the extent required, one firm or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented local counsel in connection with such demand do not strictly comply with the terms of such Letter of Credit)each relevant local jurisdiction, (iii) any actual or alleged presence or release of Hazardous Materials onto pay, atindemnify, under or and hold harmless each Lender and the Administrative Agent from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise excise, property, intangible, mortgage recording and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (civ) To to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and their respective Related Parties (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of one firm of counsel for all Indemnified Parties (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict has retained its own counsel, of another firm of counsel for such affected Indemnified Party), and to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent required, one firm or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5local counsel in each relevant jurisdiction for all Indemnified Parties, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection withor with respect to the Transactions or to the execution, or as a result ofdelivery, enforcement, performance and administration of this Agreement or any agreement or instrument contemplated herebyAgreement, the Transactions, other Credit Documents and any Loan, Letter of Credit such other documents or the use of the proceeds thereof, including any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of the Borrower, any of its Subsidiaries or any of the Real Estate (all the foregoing in this clause (iv), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) the gross negligence, bad faith or willful misconduct of such Indemnified Party or its Related Parties, (B) a material breach of the obligations of such Indemnified Party or its Related Parties under the Credit Documents or (C) disputes between or among the Indemnified Parties. All amounts payable under this Section 12.5 shall be paid within 5 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 12.5 shall survive repayment of the Loans and all other amounts payable hereunder.
(eb) All amounts due under this subsection 11.5 No Credit Party nor any Indemnified Party shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, have any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liability for any brokerpunitive, finder indirect or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under consequential damages resulting from this Agreement or any other Credit DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of any Indemnified Party or any of its Related Parties. Without limiting the generality of the foregoing, but only to the extent representing reasonable and documented out of pocket costs and expenses, the expenses, costs, charges and fees described above may include: fees, costs and expenses of accountants, environmental advisors, appraisers, investment bankers, management and other consultants and paralegals (if any such accountants, environmental advisors, appraisers, investment bankers and management and other consultants have been retained with the prior written consent of the Borrower); photocopying and duplication expenses; long distance telephone charges; air express charges; and telegram or telecopy charges.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Goodman Global Group, Inc.), Term Loan Credit Agreement (Goodman Sales CO)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay agrees, (i) to pay or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges of Weil, Gotshal & Xxxxxx LLP and disbursements of one counsel for in each relevant local jurisdiction approved by the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse each Lender, the Collateral Agent and the Administrative Agent for all their reasonable and documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges and disbursements of any one firm or counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder Administrative Agent and the Collateral Agent and, to the extent required, one firm or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented local counsel in connection with such demand do not strictly comply with the terms of such Letter of Credit)each relevant local jurisdiction, (iii) any actual or alleged presence or release of Hazardous Materials onto pay, atindemnify, under or and hold harmless each Lender and the Administrative Agent from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise excise, property, intangible, mortgage recording and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (civ) To to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, the Joint Lead Arrangers and their respective Related Parties (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of one firm of counsel for all Indemnified Parties (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict has retained its own counsel, of another firm of counsel for such affected Indemnified Party) , and to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent required, one firm or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5local counsel in each relevant jurisdiction for all Indemnified Parties, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection withor with respect to the Transactions or to the execution, or as a result ofdelivery, enforcement, performance and administration of this Agreement or any agreement or instrument contemplated herebyAgreement, the Transactions, other Credit Documents and any Loan, Letter of Credit such other documents or the use of the proceeds thereof, including any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of the Borrower, any of its Subsidiaries or any of the Real Estate (all the foregoing in this clause (iv), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) the gross negligence, bad faith or willful misconduct of such Indemnified Party or its Related Parties, (B) a material breach of the obligations of such Indemnified Party or its Related Parties under the Credit Documents or (C) disputes between or among the Indemnified Parties. All amounts payable under this Section 13.5 shall be paid within 5 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the Loans and all other amounts payable hereunder.
(eb) All amounts due under this subsection 11.5 No Credit Party nor any Indemnified Party shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, have any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liability for any brokerpunitive, finder indirect or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under consequential damages resulting from this Agreement or any other Credit DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of any Indemnified Party or any of its Related Parties. Without limiting the generality of the foregoing, but only to the extent representing reasonable and documented out of pocket costs and expenses, the expenses, costs, charges and fees described above may include: fees, costs and expenses of accountants, environmental advisors, appraisers, investment bankers, management and other consultants and paralegals (if any such accountants, environmental advisors, appraisers, investment bankers and management and other consultants have been retained with the prior written consent of the Borrower); photocopying and duplication expenses; long distance telephone charges; air express charges; and telegram or telecopy charges.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Goodman Global Group, Inc.), Revolving Credit Agreement (Goodman Sales CO)
Payment of Expenses and Taxes; Indemnification. The Grantors shall pay such compensation to the Collateral Agent as the Company and Collateral Agent may agree in writing from time to time. Notwithstanding that the Collateral Agent is appointed by and acting for and at the direction of the Secured Parties, the Grantors jointly and severally agree (a) Borrower agrees to pay (i) or reimburse the Collateral Agent for all its documented fees and reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Security Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for and agents appointed pursuant to Section 6.2 to the Agents in connection with Collateral Agent, any amounts due and owing pursuant to any mortgage, including, without limitation, any amounts incurred pursuant to Minn. Stat § 287.05, Subd. 5, and the syndication preservation of the credit facilities provided for herein, the preparation and administration Liens or any rights of the Credit Documents Collateral Agent (b) after the occurrence of a Triggering Event, to pay or any amendments, modifications or waivers of reimburse the provisions thereof (whether or not Collateral Agent and the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) other Secured Parties for all reasonable out-of-pocket their costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender other Security Documents and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expensesother documents, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or Collateral Agent and the consummation of the Transactions or any other transactions contemplated herebySecured Parties, (iic) any Loan or Letter of Credit or to pay, indemnify, defend and hold harmless the use of Collateral Agent and the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or other Secured Parties from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Security Documents and any such other documents.
, and (cd) To to pay, indemnify, defend and hold harmless the extent that a Credit Party fails Collateral Agent and the other Secured Parties and their respective directors, officers, employees, trustees and agents from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel and agents appointed pursuant to pay any amount required Section 6.2, with respect to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Security Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the applicable unreimbursed expense violation of, noncompliance with or indemnity payment is sought) of such unpaid amountliability under, any Environmental Law (all the foregoing in this clause (d), collectively, the “indemnified liabilities”); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as Grantors shall have no obligation hereunder to the case may be, was incurred by or asserted against such Collateral Agent or such Issuing Lender in its capacity as such. For purposes hereofany other Secured Party nor any of their respective directors, a Lender’s officers, employees and agents with respect to indemnified liabilities arising from the bad faith, gross negligence or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share willful misconduct of the sum party to be indemnified (in each case as determined by a final non-appealable order by a court of competent jurisdiction). The agreements in this Section 8.9 shall survive repayment of the aggregate amount Secured Obligations and all other amounts payable hereunder and under the other Secured Debt Documents and the termination of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement the removal or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion resignation of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentAgent.
Appears in 2 contracts
Samples: Collateral Trust and Intercreditor Agreement, Collateral Trust and Intercreditor Agreement (Northern Tier Retail LLC)
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees and Holdings agree, jointly and severally, to pay (i) all reasonable out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents (provided that, in the case of legal fees, Borrower and Holdings’ obligations under this clause (i) shall be limited for each such party to one primary counsel, one local counsel in each relevant jurisdiction and one or more additional counsel if one or more conflicts of interests arise) in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any LenderLender (provided that, in the case of legal fees, Borrower and Holdings’ obligations under this clause (iii) shall be limited for each such party to one primary counsel, one local counsel in each relevant jurisdiction and one or more additional counsel if one or more conflicts of interests arise), in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree agree, jointly and severally, to indemnify the Agents, the Issuing Lender and each Lender, and each of their the Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebyhereby (including the syndication of the credit facilities provided for herein), (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party theretothereto or whether such matter is initiated by a third party or by Borrower, any other Credit Party or any of their respective Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, material breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees Indemnitee or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes Taxes (other than withholding taxesTaxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent Agent, or each Revolving Credit Lender severally agrees to pay to such Issuing Lender, as the case may be, such Lender’s or such Revolving Credit Lender’s, as the case may be, ’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Term Loans and Revolving Credit Commitments (whether used or unused), or the total Revolving Credit Loans and Revolving Credit CommitmentsCommitments (whether used or unused), as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer Issuing Lender for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive the payment in full of the Obligations, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Credit Document or any investigation made by or on behalf of the Administrative Agent, any Lender or any Issuing Lender, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 2 contracts
Samples: Credit Agreement (Atlantic Broadband Finance, LLC), Credit Agreement (Atlantic Broadband Finance, LLC)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender and the Administrative Agent harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnified Party as finally determined in a nonappealable judgment by a court of competent jurisdiction, (B) disputes arising between or among the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans Lenders and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant (C) with respect to any agreementsuch Indemnified Party, arrangement or understanding made by or on behalf the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section 9.5 shall survive the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Kayne Anderson MLP Investment CO), Credit Agreement (Kayne Anderson MLP Investment CO)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse the Lender for all of its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation due diligence expenses, consultant's fees and expenses, travel expenses and the reasonable feesfees and disbursements of counsel, charges (ii) to pay or reimburse the Lender for all its costs and expenses incurred in connection with the enforcement, monitoring or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Lender, (iii) any actual or alleged presence or release of Hazardous Materials onto pay, atindemnify, under or from any Mortgaged Property or any other property currently or formerly ownedand hold the Lender harmless from, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
documents and (civ) To to pay, indemnify, and hold the extent that a Credit Party fails Lender and its Affiliates and each of the Lender's and its Affiliates' respective officers, directors, employees, agents and representatives (including all professionals) (each an "INDEMNIFIED PARTY") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyAgreement, the Transactions, any Loan, Letter of Credit other Loan Documents or the use of the proceeds thereof.
of the Loan and any such other documents (eall the foregoing in this clause (iv) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agentcollectively, the Lenders and each Issuer for"INDEMNIFIED LIABILITIES"), and hold PROVIDED, HOWEVER, that the Administrative Agent, Borrower shall have no obligation hereunder to the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreementIndemnified Liabilities arising from the gross negligence or willful misconduct of the Lender. Notwithstanding anything herein to the contrary, arrangement or understanding made by or on behalf the agreements in this SECTION 8.5 shall survive repayment of Borrower or any the Loan and all other amounts payable hereunder and the termination of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(gb) The Credit Parties agree Promptly after receipt by an Indemnified Party under this SECTION 8.5 of notice of any claim or the commencement of any action, the Indemnified Party shall, if a claim in respect thereof is to be made against the Borrower, notify the Borrower in writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to notify the Borrower shall not relieve it from any indemnification liability which it may have under this SECTION 8.5 except to the extent it has been materially prejudiced by such failure and, PROVIDED FURTHER, that the failure to notify the Borrower shall not relieve it from any liability which it may have to an Indemnified Party otherwise than under this SECTION 8.5. If any such claim or action shall be brought against an Indemnified Party, and it shall notify the Borrower thereof, the Borrower shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Borrower to the Indemnified Party of its election to assume the defense of such claim or action, the Borrower shall not be liable to the Indemnified Party under this SECTION 8.5 for any legal or other protection provided expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, the Borrower shall have the right to employ separate counsel in any Indemnitee pursuant such action and to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) survive payment the employment of such counsel has been specifically authorized by the Borrower in full of the Obligationswriting, or (ii) survive such Indemnified Party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the release Borrower and in the reasonable judgment of all such counsel it is advisable for such Indemnified Party to employ separate counsel or any portion of the Collateral and (iii) inure the Borrower has failed to assume the defense of such action and employ counsel reasonably satisfactory to the benefit Indemnified Party, in which case, if such Indemnified Party notifies the Borrower in writing that it elects to employ separate counsel at the expense of the Borrower, the Borrower shall not, in connection with any Person that was one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel) at any time for all such Indemnified Parties, which firm shall be designated in writing by the Lender. The Borrower shall not (i) without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an Indemnitee under this Agreement unconditional release of each Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any other Credit Documentsettlement of any such action effected without its written consent, but if settled with the consent of the Borrower or if there be a final judgment of the plaintiff in any such action, the Borrower agrees to indemnify and hold harmless any Indemnified Party from and against any loss or liability by reason of such settlement or judgment.
Appears in 2 contracts
Samples: Loan Agreement (Cynet Inc), Loan Agreement (Cynet Inc)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay shall (i) pay or reimburse the Administrative Agent for all reasonable and documented out-of-pocket costs and expenses in connection with any amendment, supplement or modification to this Agreement, the Notes and any other documents prepared in connection herewith or therewith, including, without limitation, the reasonable and documented fees, disbursements and other charges of New York counsel and Mexican counsel to the Administrative Agent, (ii) pay or reimburse for all documented out-of-pocket expenses incurred by each of the Agents Administrative Agent and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses Lenders incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, the Notes, and any such other related documents, including, without limitation, the fees and disbursements of counsel to each Lender and of counsel to the Administrative Agent, (iii) pay or in connection with reimburse the Loans made, or Letters Joint Bookrunners for all of Credit issued or drawn hereunder, including all such their reasonable and documented out-of-pocket expenses costs incurred during any workoutin connection with this Agreement and the Notes, restructuring or negotiations in respect of such Loans or Letters of Credit.
up to an amount not to exceed U.S.$20,000, (biv) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender and the Administrative Agent, harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding Mexican taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the Notes and any such other documents, and (v) pay, indemnify, and hold each Lender, the Administrative Agent and their respective Affiliates and the respective officers, directors, employees, advisors and agents of any of them or such Affiliates harmless from and against any and all other liabilities, losses, damages, penalties, actions, judgments, suits and reasonable and documented related out-of-pocket expenses with respect to the execution, delivery, enforcement and performance of this Agreement, the Notes, and any such other documents and the use or the proposed use of the proceeds of the Loans (all the foregoing in this clause (v), collectively, the “indemnified liabilities”), provided that the Borrower shall have no obligation hereunder to the Administrative Agent or any Lender with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the Administrative Agent or any such Lender, as the case may be. The agreements in this Section shall survive repayment of the Notes and all other amounts payable hereunder.
(cb) To the extent that a Credit Party the Borrower fails to pay any amount required to be paid by them it to an the Administrative Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5Section 8.05(a), each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderthe Administrative Agent, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share Commitment Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit CommitmentsAdministrative Agent, as the case may be, at the timein their respective capacities as such.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 2 contracts
Samples: Loan Agreement (Telefonos De Mexico S a De C V), Loan Agreement (Telefonos De Mexico S a De C V)
Payment of Expenses and Taxes; Indemnification. The Grantors agree (a) Borrower agrees to pay (i) or reimburse the Collateral Trustee for all its reasonable out-of-pocket fees, costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other First Lien Security Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with Collateral Trustee, and the syndication preservation of the credit facilities provided for herein, the preparation and administration Liens or any rights of the Credit Documents Collateral Trustee (b) after the occurrence of a Triggering Event, to pay or any amendments, modifications or waivers of reimburse the provisions thereof (whether or not Collateral Trustee and the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) other Secured Parties for all reasonable out-of-pocket their costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother First Lien Security Documents and any such other documents, including all such out-of-pocket expenses incurred during any workoutthe fees and disbursements of counsel to the Collateral Trustee and the other Secured Parties, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee harmless from, any the Collateral Trustee and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or Secured Parties from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other First Lien Security Documents and any such other documents.
, and (cd) To to pay, indemnify and hold harmless the extent that a Credit Party fails Collateral Trustee and the other Secured Parties and their respective directors, officers, employees, trustees and agents from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel, with respect to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other First Lien Security Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the applicable unreimbursed expense violation of, noncompliance with or indemnity payment is sought) of such unpaid amountliability under, any Environmental Law (all the foregoing in this clause (d), collectively, the “indemnified liabilities”); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as Grantors shall have no obligation hereunder to the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Collateral Trustee or any agreement or instrument contemplated herebyother Secured Party nor any of their respective directors, the Transactionsofficers, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders employees and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant agents with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall indemnified liabilities arising from (i) survive payment in full the gross negligence or willful misconduct of the Obligations, party to be indemnified (ii) in each case as determined by a final non-appealable order by a court of competent jurisdiction). The agreements in this Section 8.9 shall survive repayment of the release of First Lien Obligations and all other amounts payable hereunder and under the other First Lien Debt Documents and the removal or any portion resignation of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentTrustee.
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Samples: Collateral Trust and Intercreditor Agreement, Collateral Trust and Intercreditor Agreement (CVR Energy Inc)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay all reasonable out-of-out of pocket costs and expenses incurred by each of the Agents and their respective AffiliatesAgent, including the reasonable fees, charges fees and disbursements of special counsel for the Agents Agent, in connection with the syndication negotiation, preparation, execution and delivery of this Credit Agreement, the Notes, Credit Party Pledge Agreements, and any other Credit Document, and (ii) to pay all reasonable out of pocket costs and expenses of the credit facilities provided for hereinBanks in connection with the enforcement of this Credit Agreement, the preparation Notes, and administration of the any other Credit Documents or any amendmentsDocument, modifications or waivers of the provisions thereof including reasonable attorneys' fees and disbursements arising in connection therewith (whether or not suit is instituted).
(b) Whether or not the transactions contemplated hereby are consummated, the Borrower agrees to indemnify, save and hold harmless each Agent-Related Person, each Bank and their respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from and against: (i) any and all claims, demands, actions or thereby shall be consummated causes of action that are asserted against any Indemnitee by any Person (other than the Agent or any Bank) relating directly or indirectly to a claim, demand, action or cause of action that such amendmentPerson asserts or may assert against any Credit Party, modification any Affiliate of any Credit Party or waiver becomes effective), any of their respective officers or directors; (ii) any and all reasonable out-of-pocket expenses incurred by claims, demands, actions or causes of action that may at any time (including at any time following repayment of the Issuing Lenders in connection with Obligations and the issuance, amendment, renewal resignation or extension removal of the Agent or the replacement of any Letter Bank) be asserted or imposed against any Indemnitee, arising out of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrelating to, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of any predecessor Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsDocuments, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated herebyCommitments, the performance by the parties to the Credit Documents of their respective obligations thereunder use or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including of any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter Extension of Credit), or the relationship of any Credit Party, the Agent and the Banks under this Credit Agreement or any other Credit Document; (iii) any actual administrative or alleged presence investigative proceeding by any Governmental Authority arising out of or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective a claim, litigationdemand, investigation action or proceeding relating to any cause of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay action described in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph subsection (a) or (b) above; and (iv) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including reasonable fees and costs of this subsection 11.5, each Lender severally agrees to pay to such Agent counsel) that any Indemnitee suffers or each Revolving Credit Lender agrees to pay such Issuing Lender, incurs as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as a result of the time that the applicable unreimbursed expense or indemnity payment is sought) assertion of such unpaid amount; provided that the unreimbursed expense or indemnified loss, any foregoing claim, damagedemand, liability action, cause of action or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection withproceeding, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, preparation of any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries defense in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification foregoing claim, demand, action, cause of action or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) proceeding, in all cases, whether or any other Credit Document shall (i) survive payment in full not arising out of the Obligationsnegligence of an Indemnitee, and whether or not an Indemnitee is a party to such claim, demand, action, cause of action or proceeding (ii) all the foregoing, collectively, the "Indemnified Liabilities"); provided that no Indemnitee shall be entitled to indemnification for any claim caused by its own gross negligence or willful misconduct or for any loss asserted against it by another Indemnitee. The agreements in this Section shall survive the release termination of the Commitments and repayment of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentObligations.
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Payment of Expenses and Taxes; Indemnification. The Borrowers jointly and severally agree (a) Borrower agrees to pay (i) or reimburse each Agent for all reasonable its out-of-pocket costs and expenses incurred by each in connection with the development, negotiation, preparation and execution of, and the administration (including inspections pursuant to Section 5.6) of, and any amendment, supplement or modification to, this Agreement, the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to such Agent and search, filing and recording fees and expenses, with statements with respect to the Agents foregoing to be submitted to either Borrower prior to the Initial Funding Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, the preparation Initial Funding Date) and administration of the Credit Documents from time to time thereafter on a monthly basis or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby such other periodic basis as such Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or the other Credit Documents and any such other documents prepared in connection with the Loans made, herewith or Letters of Credit issued or drawn hereundertherewith, including all such outthe fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and each Lenderto such Agent and (c) to pay, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender and Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
(c) To documents prepared in connection herewith or therewith. The Borrowers and the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5Guarantors shall jointly and severally indemnify and hold harmless each Agent, each Lender severally agrees to pay to such Agent or and each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of their respective affiliates and each of the time respective officers, directors, employees, agents, advisors, attorneys, consultants, and representatives of each of the foregoing (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, obligations, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including, without limitation, fees and disbursements of counsel), joint or several (“Indemnified Amounts”), that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified lossmay be imposed on, claim, damage, liability or related expense, as the case may be, was incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with, arising out of or relating to any investigation, litigation or proceeding or the preparation of any defense in connection therewith), whether or not any such Agent Indemnified Party is a party thereto, in each case in any manner relating to, arising out of or in connection with or by reason of the Exit Facility, or the use or intended use of the proceeds of the Exit Facility, the Cases, the Credit Documents, or the transactions contemplated hereby or thereby (which shall include any act, event or transaction related or attendant to any thereof), or in connection with any investigation of any matters contemplated hereby or thereby (collectively, the “Indemnified Matters”) except that the Borrowers and the Guarantors shall not have any obligation to an Indemnified Party pursuant hereto with respect to any Indemnified Amounts relating to any Indemnified Matter to the extent of any portion of such Issuing Lender Indemnified Amounts directly and primarily caused by, or directly and primarily resulting from, the gross negligence or willful misconduct of that Indemnified Party as determined in its capacity as sucha final non-appealable judgment or order by a court of competent jurisdiction. For purposes hereofIn the case of an investigation, a Lender’s litigation or Revolving Credit Lender’s “pro rata share” other proceeding to which the indemnity in this paragraph applies, such indemnity shall be determined based upon its share effective whether or not such investigation, litigation or proceeding is brought by any Borrower or Guarantor or any of their respective Subsidiaries, or by any directors, security holders or creditors of any of the sum foregoing, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto. The Borrowers and the Guarantors further agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any of them or any of their respective Subsidiaries for or in connection with the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit CommitmentsIndemnified Matters, as the case may be, at the time.
(d) To except to the extent permitted such liability is determined in a final non-appealable judgment by applicable lawa court of competent jurisdiction to have been directly and primarily caused by, or directly and primarily resulting from, such Indemnified Party’s gross negligence or willful misconduct. In no Credit event, however, shall any Indemnified Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, be liable on any theory of liability, liability for any special, indirect, consequential or punitive damages (as opposed including, without limitation, any loss of profits, business or anticipated savings). Without limiting the foregoing, and to direct or actual damages) arising out ofthe extent permitted by applicable law, in connection witheach Credit Party agrees not to assert and to cause its Subsidiaries not to assert, or as a result ofand hereby waives and agrees to cause its Subsidiaries to waive, this Agreement all rights for contribution or any agreement other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or instrument contemplated herebynature, the Transactionsunder or related to Environmental Laws, that any Loan, Letter of Credit them might have by statute or the use of the proceeds thereof.
(e) otherwise against any Indemnified Party. All amounts due under this subsection 11.5 Section shall be payable promptly not later than ten days after written demand therefor.
(f) The Credit Parties . Statements payable by the Borrowers or the Guarantors pursuant to this Section shall indemnify be submitted to the Person and at the address of the Borrowers or the Guarantors set forth in Section 12.2, or to such other Person or address as may be hereafter designated by either Borrower in a written notice to the Administrative Agent, . The agreements in this Section shall survive repayment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder Obligations payable hereunder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Administrative Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect the fees and disbursements of such Loans or Letters of Credit.
(b) The Credit Parties agree counsel to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Administrative Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender and the Administrative Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
, and (cd) To to pay, indemnify, and hold each Lender and the extent that a Credit Party fails Administrative Agent and their respective officers, directors, employees, Affiliates, agents, trustees and investment advisers and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Loan Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the Commitments, use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable unreimbursed expense to the operations of Holdings, the Borrower, any of their respective Subsidiaries or indemnity payment is sought) any of such unpaid amounttheir properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided that the unreimbursed expense Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or indemnified losswillful misconduct of such Indemnitee. Without limiting the foregoing, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to the extent permitted by applicable law, no Credit Party shall the Borrower agrees not to assert and to cause the Subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause the Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) . All amounts due under this subsection 11.5 Section 10.5 shall be payable promptly not later than 10 days after written demand therefor.
. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to Treasurer and General Counsel (fTelephone No. (000) The Credit Parties shall indemnify 000-0000) (Telecopy No. (000) 000-0000), at the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent, . The agreements in this Section 10.5 shall survive the Lenders termination of this Agreement and each Issuer for, and hold the Administrative Agent, repayment of the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissionsother amounts payable hereunder. It is understood and agreed that, fees to the extent not precluded by a conflict of interest, each Indemnitee shall endeavor to reasonably work cooperatively with the Borrower with a view to minimizing the legal and other compensation made against expenses associated with any defense and any potential settlement or judgment. To the Administrative Agent, the Lenders extent reasonably practicable and the Issuing Lenders for any broker, finder or consultant with respect not disadvantageous to any agreementIndemnitee, arrangement it is anticipated that a single counsel will be used. Settlement of any claim or understanding made by or on behalf of Borrower or litigation involving any of Borrower’s Subsidiaries in connection with material indemnified amount will require the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full approval of the Obligations, Borrower (ii) survive the release of all or any portion of the Collateral and (iii) inure not to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentbe unreasonably withheld).
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Payment of Expenses and Taxes; Indemnification. The Borrower agrees: (a) Borrower agrees to pay (i) or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, or waiver or forbearance of, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of one firm of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation Administrative Agent and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)filing and recording fees and expenses, (iib) to pay or reimburse each Lender and each Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with any rights, privileges, powers or remedies under this Agreement, the Credit Documentsother Loan Documents and any such other documents, including their rights under the fees and disbursements of one firm of counsel selected by the Administrative Agent, together with any special or local counsel, to the Administrative Agent and, following the occurrence and during the continuance of an Event of Default, not more than one other firm of counsel to the Lenders (it being understood that the Borrower shall not be obligated to reimburse any Lender (other than the Administrative Agent as provided above) for its expenses pursuant to this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
clause (b) The Credit Parties agree except to indemnify the Agents, extent that an Event of Default has occurred and is continuing at the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties time of any of the foregoing Persons proposed amendment or waiver), (each such Person being called an “Indemnitee”c) againstto pay, indemnify, and hold each Indemnitee Lender and each Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation of or administration of, any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To if any Event of Default shall have occurred, to pay or reimburse all reasonable fees and expenses of a financial advisor engaged on behalf of, or for the extent permitted by applicable lawbenefit of, no Credit Party shall assertthe Agents and the Lenders accruing from and after the occurrence of such Event of Default, (e) to pay, indemnify, and hold each Credit Party hereby waivesLender, any claim each Agent, their advisors and affiliates and their respective officers, directors, trustees, employees, agents and controlling persons (each, an “Indemnitee”) harmless from and against any Indemniteeand all other liabilities, on obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any theory kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyAgreement, the Transactionsother Loan Documents and any such other documents, including any Loan, Letter of Credit or the foregoing relating to the use of proceeds of the proceeds thereof.
(e) All amounts due Loans, including the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under this subsection 11.5 shall be payable promptly after written demand therefor.
any Loan Document, and (f) The Credit Parties shall indemnify the Administrative Agentto pay, the Lenders and each Issuer forindemnify, and hold the Administrative Agent, the Lenders and each Issuing Lender Indemnitee harmless from and againstagainst any actual or prospective claim, any and all claims for brokerage commissionslitigation, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder investigation or consultant with respect proceeding relating to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.matters described - 98-
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees, (a) Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred by each of or reimburse the Agents and the Lenders for all of their respective Affiliatescosts and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of counsel for to the Agents and the Lenders, (b) to pay or reimburse each Lender and the Agents for all their costs and expenses incurred in connection with the syndication enforcement or preservation of the credit facilities provided for hereinany rights under this Agreement, the preparation and administration of the other Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or and any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lenderother documents, including the reasonable fees, disbursements and other charges of counsel to each Lender and disbursements of any counsel for to the Agents, the Issuing Lender or any Lender(c) to pay, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold harmless each Indemnitee harmless from, Lender and the Agents from any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) to pay or reimburse Collateral Agent for all reasonable fees and expenses incurred in exercising its rights under Section 9.16 and (e) to pay, indemnify and hold harmless each Lender (solely in their capacity as Lenders under this Agreement and the other Credit Documents) and the Agents (solely in their capacity as Agents under this Agreement and the other Credit Documents) and their respective Related Parties from and against any and all other liabilities, obligations, losses, damages, actions, judgments, suits, and costs, expenses or disbursements of any kind or nature whatsoever, including reasonable fees, disbursements and other charges of counsel, with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents, including any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of the Borrower, any of its Subsidiaries or any of their Real Property (all the foregoing in this clause (f), collectively, the “indemnified liabilities”); provided, that the Borrower shall have no obligation hereunder to the Agents or any Lender nor any of their Related Parties with respect to indemnified liabilities arising from (i) the gross negligence or willful misconduct of the party to be indemnified or one of their Related Parties or (ii) disputes among the Agents, the Lenders and/or their transferees. The agreements in this Section 14.05 shall survive repayment of the Loans and all other amounts payable hereunder and termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party the Borrower shall not assert, and each Credit Party the Borrower hereby waives, any claim against any IndemniteeLender, any Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit Loan or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent nor any of their respective Related Parties shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated by this Agreementhereby or thereby.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Credit Agreement (Molecular Insight Pharmaceuticals, Inc.)
Payment of Expenses and Taxes; Indemnification. Each Obligor jointly and severally agrees, subject to the $1,000,000 aggregate expense cap set forth in Section 10.04 of the First Lien Agreement and the other terms and provisions thereof, (a) Borrower agrees to pay (i) or reimburse Collateral Agent and each Approved Hedge Counterparty for all reasonable of their respective out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Transaction Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to Collateral Agent and an Approved Hedge Counterparty and filing and recording fees and expenses, with statements with respect to the Agents foregoing to be submitted to Borrowers prior to the Effective Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, the preparation Effective Date) and administration of the Credit Documents from time to time thereafter on a quarterly basis or any amendments, modifications such other periodic basis as Collateral Agent or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby such Approved Hedge Counterparty shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Secured Party and Collateral Agent for all reasonable out-of-pocket of their respective costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Transaction Documents and any such other documents, including all such out-of-pocket expenses incurred during any workoutthe fees and disbursements of counsel (and other agents and professionals), restructuring or negotiations in respect of such Loans or Letters of Credit.
to each Secured Party and to Collateral Agent, (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Secured Party and Collateral Agent harmless fromfrom and against, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Transaction Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to pay, indemnify, and hold each Secured Party and Collateral Agent and their respective officers, directors, employees, Affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Transaction Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the notes or the violation of, noncompliance with or liability under, any environmental law applicable to the operations of any Obligor, any of its subsidiaries or any of the Collateral and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Obligor under any Transaction Document (all the foregoing in this Clause (d), collectively the “Indemnified Liabilities”); provided, that no Obligor shall have any obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, no Credit Party shall each Obligor agrees not to assert and to cause its subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause its subsidiaries to so waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to environmental laws, that any of them might have by statute or otherwise against any Indemnitee, on . Without limiting any theory provision of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or of any agreement or instrument contemplated herebyother Transaction Document, it is the Transactions, any Loan, Letter of Credit or the use express intention of the proceeds thereof.
(e) parties hereto that each Indemnitee shall be indemnified from and held harmless against any and all Indemnified Liabilities arising out of or resulting from the sole or contributory negligence of such Indemnitee. All amounts due under this subsection 11.5 Section 9.09 shall be payable promptly and in any event, not later than 10 days after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made . Statements payable by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee Obligors pursuant to this Agreement (including pursuant Section 9.09 shall be submitted to Borrowers at the address of Borrowers set forth in Section 9.12, or to such other Person or address as may be hereafter designated by the Obligors in a written notice to Collateral Agent. The Agreements in this subsection 11.5) or any other Credit Document Section 9.09 shall (i) survive payment in full repayment of the First Lien Obligations, (ii) survive the release of Approved Hedge Counterparty Swap Contracts and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (PostRock Energy Corp)
Payment of Expenses and Taxes; Indemnification. The Company will (a) Borrower agrees to pay (i) or reimburse Xxxxxx Capital for all reasonable of Xxxxxx Capital's out-of-pocket costs and expenses incurred by each in connection with the preparation and execution of, and any amendment, supplement or modification to, the Transaction Documents and the consummation of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)to Xxxxxx Capital, (iib) pay or reimburse Xxxxxx Capital for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5, or in connection with and the Loans made, or Letters verification of Credit issued or drawn hereunderthe Accounts Receivable and the credit worthiness of the Customers, including all such out-of-pocket expenses incurred during any workoutwithout limitation, restructuring or negotiations in respect reasonable fees and disbursements of such Loans or Letters of Credit.
counsel to Xxxxxx Capital; (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Xxxxxx Capital harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, paying any stamp, excise excise, and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document the Transaction Documents; (d) pay for monthly statements at $0.73 each plus all postage expended by Xxxxxx Capital to mail invoices and any such other documents.
otherwise collect the accounts; (ce) To pay the extent that fees and interest set forth on Exhibit “B” attached hereto and made a Credit Party fails part thereof; (f) pay for field examinations at the rate of eight hundred fifty dollars per person per day plus expenses, provided however unless there exists a Default hereunder the Company shall only be obligated to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) for one field examination during each term of this subsection 11.5Agreement; (g) pay, each Lender severally agrees indemnify and hold Xxxxxx Capital harmless from and against any and all claims, liabilities, obligations, losses, potential losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, whether threatened, pending or determined (including attorney's fees and court costs now or hereafter arising from this Agreement or any activities of the Company (referred to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount"indemnified liabilities"); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” Company shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, have no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed obligation hereunder to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant Xxxxxx Capital with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any Xxxxxx Capital. The covenants of Borrower’s Subsidiaries in connection with this paragraph shall survive the transactions contemplated by termination of this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.. Commercial Financing Agreement
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent for all reasonable its out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Restatement Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, Restatement Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and the Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such outthe fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee the Agent and the Lenders harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to pay, indemnify, and hold the each Lender and the Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party or any of the Mortgaged Properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, no Credit Party shall the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause its Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) . All amounts due under this subsection 11.5 Section 9.5 shall be payable promptly not later than 10 days after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Payment of Expenses and Taxes; Indemnification. Each Obligor jointly and severally agrees (a) Borrower agrees to pay (i) or reimburse Collateral Agent and Approved Hedge Counterparty for all reasonable of their respective out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Transaction Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to Collateral Agent and Approved Hedge Counterparty and filing and recording fees and expenses, with statements with respect to the Agents foregoing to be submitted to Borrower prior to the Effective Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, the preparation Effective Date) and administration of the Credit Documents from time to time thereafter on a quarterly basis or any amendments, modifications such other periodic basis as Collateral Agent or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Approved Hedge Counterparty shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Secured Party and Collateral Agent for all reasonable out-of-pocket of their respective costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Transaction Documents and any such other documents, including all such out-of-pocket expenses incurred during any workoutthe fees and disbursements of counsel (and other agents and professionals), restructuring or negotiations in respect of such Loans or Letters of Credit.
to each Secured Party and to Collateral Agent, (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Secured Party and Collateral Agent harmless fromfrom and against, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Transaction Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to pay, indemnify, and hold each Secured Party and Collateral Agent and their respective officers, directors, employees, Affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Transaction Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the notes or the violation of, noncompliance with or liability under, any environmental law applicable to the operations of any Obligor, any of its subsidiaries or any of the Collateral and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Obligor under any Transaction Document (all the foregoing in this Clause (d), collectively the “Indemnified Liabilities”); provided, that no Obligor shall have any obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, no Credit Party shall each Obligor agrees not to assert and to cause its subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause its subsidiaries to so waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to environmental laws, that any of them might have by statute or otherwise against any Indemnitee, on . Without limiting any theory provision of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or of any agreement or instrument contemplated herebyother Transaction Document, it is the Transactions, any Loan, Letter of Credit or the use express intention of the proceeds thereof.
(e) parties hereto that each Indemnitee shall be indemnified from and held harmless against any and all Indemnified Liabilities arising out of or resulting from the sole or contributory negligence of such Indemnitee. All amounts due under this subsection 11.5 Section 9.09 shall be payable promptly and in any event, not later than 10 days after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made . Statements payable by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee Obligors pursuant to this Agreement (including pursuant Section 9.09 shall be submitted to Borrower at the address of Borrower set forth in Section 9.12, or to such other Person or address as may be hereafter designated by the Obligors in a written notice to Collateral Agent. The Agreements in this subsection 11.5) or any other Credit Document Section 9.09 shall (i) survive payment in full repayment of the First Lien Obligations, (ii) survive the release of Approved Hedge Counterparty Swap Contracts and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse each of the Agents, each Joint Lead Arranger, each Joint Bookrunner and the Syndication Agent for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by each (without duplication) associated with the syndication of the Agents Credit Facilities and their respective Affiliatesincurred in connection with the development, preparation, execution and delivery of, and any amendment, supplement and/or modification to this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of Shearman & Sterling LLP as counsel for to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Effective Date (in connection the case of amounts to be paid on the Effective Date and from time to time thereafter on a quarterly basis) and one counsel in each relevant local jurisdiction approved by, or otherwise retained with the syndication of the credit facilities provided for hereinconsent of, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse the Collateral Agent, the Administrative Agent and each Lender for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative Agent and the Collateral Agent and, to the extent required, one firm or local counsel in each relevant local jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed (which may include a single special counsel acting in multiple jurisdictions), and (iii) to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, the Joint Bookrunners, the Syndication Agent, each Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or disbursements of any counsel for the Agentskind or nature whatsoever (including, the Issuing Lender but not limited to, any action, claim, litigation, investigation, inquiry or any Lenderother proceeding), in connection with the enforcement including, taken as a whole, reasonable and documented or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such invoiced out-of-pocket expenses incurred during fees, reasonable expenses, disbursements and other charges of one firm of counsel for all Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of any workout, restructuring or negotiations in respect existence of such Loans conflict and in connection with the investigating or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of defending any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees) has retained its own counsel, charges of another firm of counsel for such affected Indemnified Party), and disbursements to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) of any counsel such Indemnified Party arising out of or relating to any action, claim, litigation, investigation or other proceeding (and environmental consultants including any inquiry or professionalsinvestigation of the 195 LPL – A&R Credit Agreement foregoing) for (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any Indemniteeother third person), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties with respect to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other transactions contemplated hereby, (ii) any Loan or Letter of Credit documents or the use of the proceeds therefrom (of the Loans or Letters of Credit, including any refusal by an Issuing Lenders of the foregoing relating to honor a demand for payment under a Letter of Credit if the documents presented in connection violation of, noncompliance with such demand do not strictly comply with the terms of such Letter of Credit)or liability under, (iii) any Environmental Law or any actual or alleged presence of or release Release of Hazardous Materials onapplicable to the Borrower, at, under or from any Mortgaged Property of its Subsidiaries or any other property currently of the Real Property (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (i) the gross negligence, bad faith or formerly owned, leased or otherwise operated by Borrower willful misconduct of such Indemnified Party or any of its Subsidiaries, or any liability under Environmental Laws related Related Parties as determined in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory a final and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, nonappealable judgment as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from jurisdiction, (ii) a material breach of the bad faith, gross negligence, breach obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable judgment as determined by a court of competent jurisdiction, (iii) in addition to clause (ii) above, in the case of any action, claim, litigation, investigation, inquiry or other Credit Documents or willful misconduct proceeding initiated by the Borrower against the relevant Indemnified Party, solely from a breach of the obligations of such Indemnitees Indemnified Party or its Related Parties under the terms of this Agreement as determined in a final and non-appealable judgment by a court of competent jurisdiction, or (viv) any proceeding between and all recording and filing fees and any and all liabilities with respect to, among Indemnified Parties that does not involve an act or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with omission by the execution and delivery of, or consummation of any direct parent of the transactions contemplated byBorrower, the Borrower or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amountits Restricted Subsidiaries; provided that the unreimbursed expense or indemnified lossAdministrative Agent, claimthe Collateral Agent, damagethe Letter of Credit Issuers, liability or related expensethe Swingline Lenders, as the case may beJoint Lead Arrangers, was incurred by or asserted against such the Joint Bookrunners and the Syndication Agent or such Issuing Lender to the extent acting in its their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in clause (i), (ii), (iii) or (iv) of the immediately preceding proviso applies to such person at such time. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” All amounts payable under this Section 13.5(a) shall be determined based upon its share paid within 10 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(db) To No Credit Party nor any Indemnified Party shall have any liability for any punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Effective Date); provided that, nothing in this Section 13.5(b) shall limit any Credit Party’s indemnity obligations to the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for such special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, are included in any third party claim in connection withwith which an Indemnified Party is entitled to indemnification thereunder. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or as a result of, other information transmission systems in connection with this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of other Credit Documents or the use transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Indemnified Party or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this its Related Parties. 196 LPL – A&R Credit Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Fourth Amendment Agreement (LPL Financial Holdings Inc.)
Payment of Expenses and Taxes; Indemnification. (a) Borrower Each Fund, on its own behalf or if applicable on behalf of the investment portfolios thereof which are Borrowers, agrees severally (subject to pay Section 9.5(b) below) (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold each Lender and the Administrative Agent harmless from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
documents with respect to such Borrower, and (civ) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, indemnify and hold each Lender severally agrees to pay to such and the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender(and their respective affiliates, as directors, officers, agents and employees (collectively with the case may be, such Lender’s or Revolving Credit Lender’s, as Administrative Agent and the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyLenders, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e"Indemnified Parties")) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, against any and all claims for brokerage commissionsother liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out- of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and other compensation made against the Administrative Agentadministration of this Agreement, the Lenders actual or proposed use of proceeds, the other Loan Documents and any such other documents (all the Issuing Lenders for foregoing in this clause (iv), collectively, the "indemnified liabilities"), provided, that such Fund, on its own behalf or if applicable on behalf of the investment portfolios thereof which are Borrowers shall have no obligation hereunder to any broker, finder or consultant Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by willful misconduct of such Indemnified Party, (B) disputes arising between or on behalf among the Lenders or (C) with respect to any such Indemnified Party, the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section shall survive repayment of the transactions contemplated by this AgreementLoans and all other amounts payable hereunder.
(gb) The Credit Parties agree Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that any indemnification or other protection provided arises pursuant to Section 9.5(a) is not attributable to any Indemnitee pursuant particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent any such obligation to this Agreement (including pursuant reimburse or indemnify any Indemnified Party is attributable to this subsection 11.5) one or any other Credit Document more Borrowers, then such reimbursement or indemnification shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure be made by each such Borrower to the benefit extent of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentits liability therefor.
Appears in 1 contract
Samples: Credit Agreement (Firstar Funds Inc)
Payment of Expenses and Taxes; Indemnification. The Grantors agree (a) Borrower agrees to pay (i) or reimburse the Collateral Agent for all its reasonable and documented out-of-pocket fees, costs and expenses incurred by each in connection with the preparation, negotiation and execution of, and any amendment, supplement or modification to, this Agreement and the other Pari Passu Debt Documents and/or Pari Passu Security Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable documented out-of-pocket fees, expenses incurred by and disbursements of legal counsel to the Issuing Lenders in connection with the issuanceCollateral Agent, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket fees, costs and expenses of the Collateral Agent in connection with the use of IntraLinks, SyndTrak or other similar information transmission systems in connection with this Agreement, the Pari Passu Debt Documents and/or any Pari Passu Security Documents and the preservation of the Liens or any rights of the Collateral Agent, (b) to pay or reimburse the Collateral Agent and the other Secured Parties for all their costs and expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Pari Passu Security Documents and any such other documents, including all such the reasonable and out-of-pocket fees, expenses incurred during any workoutand disbursements of legal counsel to the Collateral Agent and the other Secured Parties and their respective legal counsel, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bc) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of extent not already covered by any of the foregoing Persons (each such Person being called an “Indemnitee”) againstpreceding subsections, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including to pay the reasonable fees, charges fees and disbursements of counsel to the Collateral Agent and any counsel (and environmental consultants Secured Party incurred in connection with the representation of the Collateral Agent, or professionals) for such Secured Party in any Indemnitee, incurred by matter relating to or asserted against any Indemnitee arising out ofof any bankruptcy, in connection withincluding, or as a result of without limitation, (i) the execution any motion for relief from any stay or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebysimilar order, (ii) the negotiation, preparation, execution and delivery of any Loan document relating to the Pari Passu Debt Obligations and (iii) the negotiation and preparation of any debtor in possession financing or Letter any plan of Credit reorganization of the Company or any other Grantor, whether proposed by the Company, such Grantor, the Secured Parties or any other Person, and whether such fees and expenses are incurred prior to, during or after the commencement of such proceeding or the use confirmation or conclusion of any such proceeding. Notwithstanding the proceeds therefrom (including any refusal by an Issuing Lenders foregoing, the obligation to honor a demand reimburse the Secured Parties for payment under a Letter fees and expenses of Credit if the documents presented counsel in connection with such demand do not strictly comply the matters described in items (b) and (c) above shall be limited to (x) one law firm for the Collateral Agent, (y) one other law firm retained by the Required Pari Passu Debtholders, together with (in the terms case of such Letter of Credit(x) and (y), as applicable) one additional counsel in each applicable jurisdiction, and (iiiz) any in the case of an actual or alleged presence or release perceived conflict of Hazardous Materials oninterest, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related one additional counsel to the affected Secured Parties that are similarly situated in any way to Borrower or any of its Subsidiarieseach relevant jurisdiction, (ivd) any actual or prospective claimto pay, litigationindemnify, investigation or proceeding relating to any defend and hold harmless the Collateral Agent, and Affiliate of the foregoingCollateral Agent, whether based on contract, tort or any and the other theory Secured Parties (the “Indemnified Party”) from and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) against any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Pari Passu Security Documents and any such other documents.
, and (ce) To to pay, indemnify, defend and hold harmless the extent Collateral Agent and the other Secured Parties and their respective directors, officers, employees, trustees and agents from and against (i) any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, claims, deficiencies, expenses or disbursements of every kind and nature whatsoever, including court costs and the reasonable and documented fees, disbursements and other charges of legal counsel (it being understood and agreed that a Credit Party fails the Grantors will not be responsible for fees and expenses of more than one special counsel and one local counsel in each relevant jurisdiction), in each case selected by the Collateral Agent, and in the case of an actual or perceived conflict of interest, one additional counsel to pay the affected Secured Parties that are similarly situated in each relevant jurisdiction, incurred in connection with any amount required litigation, investigation, claim or proceeding or any advice rendered in connection therewith; (ii) the fact that the Collateral Agent and the Secured Parties are creditors of the Company and have or are alleged to be paid by them have information regarding the financial condition, strategic plans or business operations of the Company and the Affiliates; (iii) the fact that the Collateral Agent and the Secured Parties are material creditors of the Company and are alleged to an influence directly or indirectly the business decisions or affairs of the Company and the Affiliates or their financial condition; (iv) the exercise of any right or remedy the Collateral Agent or an Issuing Lender the Secured Parties may have under paragraph this Agreement, any Pari Passu Debt Document or any Pari Passu Security Document, (av) or (b) with respect to the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Pari Passu Security Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the applicable unreimbursed expense violation of, noncompliance with or indemnity payment is soughtliability under, any Environmental Law (as defined in the Credit Agreement) of such unpaid amount(all the foregoing in this clause (e), collectively, the “indemnified liabilities”); provided that the unreimbursed expense Grantors shall have no obligation hereunder to the Collateral Agent or any other Secured Party nor any of their respective directors, officers, employees and agents with respect to (1) indemnified lossliabilities arising from the gross negligence, claimbad faith or willful misconduct of the party to be indemnified (in each case as determined by a final non-appealable order by a court of competent jurisdiction), damage, liability (2) indemnified liabilities to the extent arising directly out of or related expenseresulting directly from claims of one or more Indemnified Parties against another Indemnified Party or (3) a material breach by such Indemnified Party of its obligations under the Pari Passu Debt Documents, as the case may bedetermined by a court of competent jurisdiction in a final, was incurred by or asserted against such Agent or such Issuing Lender non-appealable judgment. The agreements in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” this Section 8.9 shall be determined based upon its share survive (x) repayment of the sum Pari Passu Debt Obligations and all other amounts payable hereunder and under the other Pari Passu Debt Documents, (y) the removal or resignation of the aggregate amount Collateral Agent, and (z) any termination of this Agreement and the other Pari Passu Debt Documents and/or Pari Passu Security Documents and are in addition to, and not in substitution of, any of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waivesother obligations set forth in this Agreement, any claim against Pari Passu Security Document or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed other Pari Passu Debt Document to direct or actual damages) which it is a party. The agreements in this Section 8.9 shall apply to the indemnified liabilities arising out of, or related to, the foregoing where or not such Indemnified Party is named a party in such a proceeding. In this connection, this indemnification shall cover all costs and expenses of any Indemnified Party in connection withwith any deposition of any Indemnified Party or compliance with any subpoena (including any subpoena requesting the production of documents). This indemnification shall, among other things, apply to any such proceeding commenced by other creditors of the Parent or the Company or any Affiliate, any shareholder of the Company or any Affiliate (whether such shareholder(s) are prosecuting such proceeding in Company individual capacity or derivatively on behalf of the Parent or the Company), any account debtor of the Company or any Affiliate or by any Governmental Authority (as a result defined in the Credit Agreement). This indemnification shall apply to any such proceeding for indemnified liabilities arising during the pendency of any bankruptcy proceeding filed by or against the Company and/or any Affiliate. All out of pocket fees and expenses of, this Agreement and all amounts paid to third persons by, an Indemnified Party shall be advanced by the Parent and the Company at the request of such Indemnified Party notwithstanding any claim or any agreement or instrument contemplated herebyassertion by the Parent and the Company that such Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking by such Indemnified Party that such Indemnified Party will reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that such Indemnified Party is not so entitled to indemnification hereunder. An Indemnified Party may conduct its own investigation and defense of, the Transactionsand may formulate its own strategy with respect to, any Loanproceeding for indemnified liabilities covered by this Section and, Letter of Credit as provided above, all costs and expenses incurred by such Indemnified Party shall be reimbursed by the Parent and the Company. No action taken by legal counsel chosen by an Indemnified Party in investigating or defending against any such proceeding shall vitiate or in any way impair the use obligations and duties of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall Company hereunder to indemnify the Administrative Agent, the Lenders and each Issuer for, and hold harmless each such Indemnified Party; provided, however, that (i) if the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders Parent and the Issuing Lenders Company are required to indemnify an Indemnified Party pursuant hereto and (ii) the Parent and the Company have provided evidence reasonably satisfactory to such Indemnified Party that the Parent and the Company have the financial wherewithal to reimburse such Indemnified Party for any broker, finder or consultant amount paid by such Indemnified Party with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated such proceeding covered by this Agreement.
(g) The Credit Parties agree that Section, such Indemnified Party shall not settle or compromise any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full such Indemnity Proceeding without the prior written consent of the Obligations, Company (ii) survive which consent shall not be unreasonably withheld or delayed). If and to the release of all or any portion extent that the obligations of the Collateral Parent and (iii) inure the Company hereunder are unenforceable for any reason, each of the Parent and the Company hereby agrees to make the maximum contribution to the benefit payment and satisfaction of any Person that was at any time an Indemnitee such obligations which is permissible under this Agreement or any other Credit Documentapplicable law.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay within thirty (i30) days after receipt of an invoice therefor, all costs and expenses in connection with the preparation, negotiation, execution, delivery, registration and administration of this Agreement, the Note and the other Credit Documents and any amendment, supplement or modification to or extension or restatement of, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel and of technical advisors and consultants for the Agents in connection Administrative Agent with respect thereto and with respect to advising the syndication Administrative Agent as to its rights and responsibilities under this Agreement; provided, however, that so long as no Event of the credit facilities provided for hereinDefault shall have occurred and be continuing, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof Borrower’s prior written consent (whether or not the transactions contemplated hereby or thereby to be unreasonably withheld) shall be consummated obtained before the Administrative Agent retains a technical advisor or other technical consultant. The Borrower further agrees to pay on demand all losses, costs and expenses, if any such amendment, modification or waiver becomes effective(including reasonable counsel fees and expenses), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the preservation of any rights of the Lender under, or the enforcement of, or protection legal advice in respect of their the rights in connection with or responsibilities of the Lender under, this Agreement, the Note and the other Credit Documents, including their rights under this subsection 11.5losses, costs and expenses sustained by the Lender as a result of any failure by any Borrower to perform or observe its obligations contained herein or in the Note held by the Lender or in connection with any refinancing or restructuring of the Loans made, or Letters Loan in the nature of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any a “workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) ” The Credit Parties agree Borrower further agrees to indemnify the Agents, the Issuing Lender and each Lenderpay on demand, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstto indemnify, and hold each Indemnitee Lender and each Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally Each Credit Party agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderpay, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer forindemnify, and hold the Administrative each Lender, each Agent, their respective Affiliates and their respective directors, partners, managers, principals, officers, employees, agents, consultants and representatives (collectively, the Lenders and each Issuing Lender “Indemnified Parties”) harmless from and against, any and all claims for brokerage commissionsother liabilities, fees obligations, losses, damages, penalties, actions, claims, judgments, awards, fines, settlements, suits, costs, charges, expenses or disbursements of any kind or nature whatsoever (irrespective of whether the Indemnified Party is named as a party to any litigation or proceeding and whether it is joint, several or joint and several) with respect to the execution, delivery, enforcement, performance and administration of any Credit Document, any such other compensation made against documents, agreements and Instruments or the Administrative Agenttransactions contemplated thereby, the Lenders and use, or proposed use, of proceeds of the Issuing Lenders for any brokerLoans, finder or consultant otherwise with respect to any agreement, arrangement Project or understanding made by or on behalf of Borrower Property or any activity, occurrence or event thereon or associated therewith (all of Borrower’s Subsidiaries the foregoing, collectively, a “Third Party Claim”), and will reimburse the Indemnified Parties for all costs and expenses (including reasonable attorneys’ fees and expenses) on demand as they are incurred in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that investigation of, preparation for or defense or prosecution of any indemnification pending or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) threatened Third Party Claim or any other Credit Document action or proceeding arising therefrom; provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent or any Lender with respect to Third Party Claims arising from (i) survive payment in full the gross negligence or willful misconduct of the ObligationsAdministrative Agent or any such Lender, as determined by a court of competent jurisdiction in a final and non-appealable judgment or (ii) survive any other loan facility involving the release of all Administrative Agent or any portion of the Collateral a Lender and (iii) inure a Property or Project that does not involve or is not attributable to the benefit of any Person that was at any time an Indemnitee under a Credit Party, a Credit Party’s interest therein or actions with respect thereto, this Agreement or any other Credit Document; provided, further, that (i) each Indemnified Party shall promptly notify the Borrower in writing upon becoming aware of the initiation of any Third Party Claim against it, (ii) the Borrower shall be entitled to participate in the defense of any such Third Party Claim and, if the Borrower so chooses, to assume the defense, at the Borrower’s expense, of any such Third Party Claim with counsel selected by the Borrower (it being understood that any Indemnified Party shall have the right to participate in such defense and employ counsel separate from the counsel employed by the Borrower, and that such counsel shall be at the expense of such Indemnified Party unless such Indemnified Party shall have been advised by counsel that there may be legal defenses available to it that are inconsistent with or in addition to those available to the Borrower, in which case such counsel shall be at the Borrower’s expense) and (iii) no Indemnified Party shall settle any Third Party Claim without the Borrower’s prior written consent (such consent not to be unreasonably withheld). The agreements in this Section 10.6 shall survive repayment of the Loans, Notes and all other amounts payable hereunder.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse each of the Agents, each Joint Lead Arranger, each Joint Bookrunner and the Syndication Agent for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by each (without duplication) associated with the syndication of the Agents Credit Facilities and their respective Affiliatesincurred in connection with the development, preparation, execution and delivery of, and any amendment, supplement and/or modification to this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of Shearman & Sterling LLP as counsel for to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Effective Date (in connection the case of amounts to be paid on the Effective Date and from time to time thereafter on a quarterly basis) and one counsel in each relevant local jurisdiction approved by, or otherwise retained with the syndication of the credit facilities provided for hereinconsent of, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse the Collateral Agent, the Administrative Agent and each Lender for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative Agent and the Collateral Agent and, to the extent required, one firm or local counsel in each relevant local jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed (which may include a single special counsel acting in multiple jurisdictions), and (iii) to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, the Joint Bookrunners, the Syndication Agent, each Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or 202 LPL – Conformed A&R Credit Agreement disbursements of any counsel for the Agentskind or nature whatsoever (including, the Issuing Lender but not limited to, any action, claim, litigation, investigation, inquiry or any Lenderother proceeding), in connection with the enforcement including, taken as a whole, reasonable and documented or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such invoiced out-of-pocket expenses incurred during fees, reasonable expenses, disbursements and other charges of one firm of counsel for all Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of any workout, restructuring or negotiations in respect existence of such Loans conflict and in connection with the investigating or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of defending any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees) has retained its own counsel, charges of another firm of counsel for such affected Indemnified Party), and disbursements to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) of any counsel such Indemnified Party arising out of or relating to any action, claim, litigation, investigation or other proceeding (and environmental consultants including any inquiry or professionalsinvestigation of the foregoing) for (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any Indemniteeother third person), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties with respect to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other transactions contemplated hereby, (ii) any Loan or Letter of Credit documents or the use of the proceeds therefrom (of the Loans or Letters of Credit, including any refusal by an Issuing Lenders of the foregoing relating to honor a demand for payment under a Letter of Credit if the documents presented in connection violation of, noncompliance with such demand do not strictly comply with the terms of such Letter of Credit)or liability under, (iii) any Environmental Law or any actual or alleged presence of or release Release of Hazardous Materials onapplicable to the Borrower, at, under or from any Mortgaged Property of its Subsidiaries or any other property currently of the Real Property (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (i) the gross negligence, bad faith or formerly owned, leased or otherwise operated by Borrower willful misconduct of such Indemnified Party or any of its Subsidiaries, or any liability under Environmental Laws related Related Parties as determined in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory a final and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, nonappealable judgment as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from jurisdiction, (ii) a material breach of the bad faith, gross negligence, breach obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable judgment as determined by a court of competent jurisdiction, (iii) in addition to clause (ii) above, in the case of any action, claim, litigation, investigation, inquiry or other Credit Documents or willful misconduct proceeding initiated by the Borrower against the relevant Indemnified Party, solely from a breach of the obligations of such Indemnitees Indemnified Party or its Related Parties under the terms of this Agreement as determined in a final and non-appealable judgment by a court of competent jurisdiction, or (viv) any proceeding between and all recording and filing fees and any and all liabilities with respect to, among Indemnified Parties that does not involve an act or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with omission by the execution and delivery of, or consummation of any direct parent of the transactions contemplated byBorrower, the Borrower or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amountits Restricted Subsidiaries; provided that the unreimbursed expense or indemnified lossAdministrative Agent, claimthe Collateral Agent, damagethe Letter of Credit Issuers, liability or related expensethe Swingline Lenders, as the case may beJoint Lead Arrangers, was incurred by or asserted against such the Joint Bookrunners and the Syndication Agent or such Issuing Lender to the extent acting in its their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in clause (i), (ii), (iii) or (iv) of the immediately preceding proviso applies to such person at such time. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” All amounts payable under this Section 13.5(a) shall be determined based upon its share paid within 10 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(db) To No Credit Party nor any Indemnified Party shall have any liability for any punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Effective Date); provided that, nothing in this Section 13.5(b) shall limit any Credit 203 LPL – Conformed A&R Credit Agreement Party’s indemnity obligations to the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for such special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, are included in any third party claim in connection withwith which an Indemnified Party is entitled to indemnification thereunder. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or as a result of, other information transmission systems in connection with this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of other Credit Documents or the use transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Indemnified Party or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreementits Related Parties.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent for all reasonable its out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and the Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such outthe fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee the Agent and the Lenders harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to pay, indemnify, and hold the each Lender and the Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party or any of the Mortgaged Properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (including the cost of successfully defending itself against a claim brought by a party hereto) (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, no Credit Party shall the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause its Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) . All amounts due under this subsection 11.5 Section 9.5 shall be payable promptly not later than 10 days after written demand therefor.
(f) . The Credit Parties agreements in this Section 9.5 shall indemnify survive the Administrative Agent, payment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders amounts payable hereunder and the Issuing Lenders for any broker, finder resignation or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full removal of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.Agent
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Payment of Expenses and Taxes; Indemnification. (a) Borrower Each Fund, on ---------------------------------------------- its own behalf or if applicable on behalf of the investment portfolios thereof which are Xxxxxxxxx, agrees severally (subject to pay Section 9.5(b) below) (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold each Lender and the Administrative Agent harmless from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
documents with respect to such Borrower, and (civ) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, indemnify and hold each Lender severally agrees to pay to such and the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender(and their respective affiliates, as directors, officers, agents and employees (collectively with the case may be, such Lender’s or Revolving Credit Lender’s, as Administrative Agent and the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyLenders, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e"Indemnified Parties")) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, against any and all claims for brokerage commissionsother ------------------- liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and other compensation made against the Administrative Agentadministration of this Agreement, the Lenders actual or proposed use of proceeds, the other Loan Documents and any such other documents (all the Issuing Lenders for foregoing in this clause (iv), collectively, the "indemnified ----------- liabilities"), provided, that such Fund, on its own behalf or if applicable on ----------- -------- behalf of the investment portfolios thereof which are Borrowers shall have no obligation hereunder to any broker, finder or consultant Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by willful misconduct of such Indemnified Party, (B) disputes arising between or on behalf among the Lenders or (C) with respect to any such Indemnified Party, the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section shall survive repayment of the transactions contemplated by this AgreementLoans and all other amounts payable hereunder.
(gb) The Credit Parties agree Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that any indemnification or other protection provided arises pursuant to Section 9.5(a) is not attributable to any Indemnitee pursuant particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent any such obligation to this Agreement (including pursuant reimburse or indemnify any Indemnified Party is attributable to this subsection 11.5) one or any other Credit Document more Borrowers, then such reimbursement or indemnification shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure be made by each such Borrower to the benefit extent of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentits liability therefor.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay within thirty (i30) days after receipt of an invoice therefor, all costs and expenses in connection with the preparation, negotiation, execution, delivery, registration and administration of this Agreement, the Notes and the other Credit Documents and any amendment, supplement or modification to or extension or restatement of, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel and of technical advisors and consultants for the Agents in connection Administrative Agent with respect thereto and with respect to advising the syndication Administrative Agent as to its rights and responsibilities under this Agreement; provided, however, that so long as no Event of the credit facilities provided for hereinDefault shall have occurred and be continuing, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof Borrower’s prior written consent (whether or not the transactions contemplated hereby or thereby to be unreasonably withheld) shall be consummated obtained before the Administrative Agent retains a technical advisor or other technical consultant. The Borrower further agrees to pay on demand all losses, costs and expenses, if any such amendment, modification or waiver becomes effective(including reasonable counsel fees and expenses), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the preservation of any rights of the Administrative Agent and each Lender under, or the enforcement of, or protection legal advice in respect of their the rights in connection with or responsibilities of the Administrative Agent and such Lender under, this Agreement, the Note held by such Lender and the other Credit Documents, including their rights under this subsection 11.5losses, costs and expenses sustained by the Administrative Agent and such Lender as a result of any failure by the Borrower to perform or observe its obligations contained herein or in the Note held by such Lender or in connection with any refinancing or restructuring of the Loans made, or Letters Loan in the nature of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any a “workout, restructuring or negotiations in respect of such Loans or Letters of Credit.”
(b) The Each Credit Parties agree Party agrees to indemnify the Agentspay, the Issuing Lender indemnify, and hold each Lender, the Administrative Agent, their respective Affiliates and each of their Affiliatesrespective directors, partners, managers, principals, officers, directors, employees, agents, trusteesconsultants and representatives (collectively, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “IndemniteeIndemnified Parties”) harmless from and against, and hold each Indemnitee harmless from, any and all other liabilities, obligations, losses, damages, penalties, actions, claims, damagesjudgments, liabilities and related expensesawards, including the reasonable feesfines, charges and settlements, suits, costs, charges, expenses or disbursements of any counsel kind or nature whatsoever (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or irrespective of whether the Indemnified Party is named as a result of (iparty to any litigation or proceeding and whether it is joint, several or joint and several) with respect to the execution or delivery execution, delivery, enforcement, performance and administration of any Credit Document Document, any such other documents, agreements and Instruments or any other agreement or instrument the transactions contemplated herebythereby, the performance by the parties to the Credit Documents use, or proposed use, of their respective obligations thereunder or the consummation proceeds of the Transactions Loans, or otherwise with respect to any other transactions contemplated hereby, (ii) any Loan Project or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently activity, occurrence or formerly owned, leased event thereon or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, associated therewith (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any all of the foregoing, whether based collectively, a “Third Party Claim”), and will reimburse the Indemnified Parties for all costs and expenses (including reasonable attorneys’ fees and expenses) on contractdemand as they are incurred in connection with the investigation of, tort preparation for or defense or prosecution of any pending or threatened Third Party Claim or any other theory and regardless action or proceeding arising therefrom; provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent or any Lender with respect to Third Party Claims arising from the gross negligence or willful misconduct of whether the Administrative Agent or any Indemnitee is a party thereto; provided that such indemnity shall notLender, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by in a final and nonappealable judgment non-appealable judgment; provided, further, that (i) each Indemnified Party shall promptly notify the Borrower in writing upon becoming aware of the initiation of any Third Party Claim against it, (ii) the Borrower shall be entitled to participate in the defense of any such Third Party Claim and, if the Borrower so chooses, to assume the defense, at the Borrower’s expense, of any such Third Party Claim with counsel selected by the Borrower (it being understood that any Indemnified Party shall have resulted the right to participate in such defense and employ counsel separate from the bad faithcounsel employed by the Borrower, gross negligenceand that such counsel shall be at the expense of such Indemnified Party unless such Indemnified Party shall have been advised by counsel that there may be legal defenses available to it that are inconsistent with or in addition to those available to the Borrower, breach in which case such counsel shall be at the Borrower’s expense) and (iii) no Indemnified Party shall settle any Third Party Claim without the Borrower’s prior written consent (such consent not to be unreasonably withheld). This Section 10.6(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. The agreements in this Section 10.6 shall survive repayment of the Loans, Notes and all other amounts payable hereunder and the earlier of the resignation or removal of the Administrative Agent or the termination of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documentsAgreement.
(c) To the extent that a Credit Party fails In no event shall any party hereto be liable to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, other party hereto on any theory of liability, liability for any special, indirect, consequential or punitive damages (as opposed to direct including any loss of profits, business or actual damagesanticipated savings) arising out of, in connection with, or as a result of, of this Agreement or the other Credit Documents. Each party hereto hereby waives, releases and agrees (and shall cause each other Credit Party to waive, release and agree) not to xxx upon any agreement such claim for any special, indirect, consequential or instrument contemplated herebypunitive damages, whether or not accrued and whether or not known or suspected to exist in its favor. Nothing contained in this Section 10.6(c) shall limit or affect the Transactions, any Loan, Letter of Credit or the use indemnification and reimbursement obligations of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries set forth in connection with the transactions contemplated by this AgreementSection 10.6(b).
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Companies will jointly and severally (a) Borrower agrees to pay (i) or reimburse CTAC and its participants for all of their respective reasonable out-of-pocket costs and expenses incurred by each in connection with the preparation and execution of, and any amendment, supplement or modification to, the Transaction Documents and the consummation of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation to CTAC and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof its participants (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effectivecounsel is affiliated with CTAC and/or its participants), (iib) pay or reimburse CTAC and its participants for all of their respective reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5, or in connection with and the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any verification of the foregoing Persons Accounts Receivable and the credit worthiness of the account debtors, including, without limitation, reasonable fees and disbursements of counsel to CTAC and its participants (each whether or not such Person being called an “Indemnitee”counsel is affiliated with CTAC and/or its participants) againstand any collateral evaluation (e.g. field examinations, collateral analysis or other business analysis) performed by CTAC or for its benefit as CTAC deems necessary; (c) pay, indemnify, and hold each Indemnitee CTAC and its participants harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or of modification of, or any waiver or consent under or in respect of, the Transaction Documents; (d) pay, indemnify, and hold CTAC, its participants and Access Capital harmless from and against any Credit Document and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any such kind or nature whatsoever, whether threatened, pending or determined (including attorneys' fees and court costs now or hereafter arising from the enforcement of this clause), (1) with respect to the execution, delivery, enforcement and performance of the Transaction Documents, including, without limitation, the custody, preservation, use or operation of, or the sale of, collection from, or other documents.
(c) To the extent that a Credit Party fails to pay realization upon, any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) collateral, or (b2) arising directly or indirectly from the activities of this subsection 11.5any Company or any subsidiary, each Lender severally agrees to pay to its predecessors in interest, or third parties with whom any Company or any subsidiary has a contractual relationship, or arising directly or indirectly from the violation of any environmental protection, health, or safety law, whether such Agent claims are asserted by any governmental agency or each Revolving Credit Lender agrees to pay such Issuing Lenderany other person, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined 3) arising by virtue of or in connection with any representation or warranty by any Company being untrue as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement date made or any agreement or instrument contemplated herebycovenant by any Company not being performed as and when required hereunder, the Transactions, or (4) arising directly or indirectly from any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and or other compensation made against owing or claimed to be owing by one or more of the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect Companies to any agreement, arrangement person or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries entity in connection with the transactions contemplated by this Agreement.
hereby (g) The Credit Parties agree all of the foregoing, collectively, the "indemnified liabilities"); provided, that any indemnification or other protection provided the Companies shall have no obligation hereunder to any Indemnitee pursuant CTAC, its participants and/or Access Capital with respect to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall indemnified liabilities arising from (i) survive payment in full the gross negligence or willful misconduct of the ObligationsCTAC, its participants and/or Access Capital, (ii) survive salaries and other amounts payable by CTAC, its participants and/or Access Capital to its employees in the release ordinary course of all business (other than for legal fees specifically billed with respect to a particular matter to which the foregoing relates) or any portion of the Collateral and (iii) inure expenses incurred by CTAC, its participants and/or Access Capital (other than those specifically enumerated above) in the ordinary course of business in connection with the performance of its obligations hereunder. To the extent that CTAC, its participants and/or Access Capital shall incur costs or expenses, or shall provide amounts to any Company in excess of amounts otherwise delivered hereunder as Initial Payments, all such amounts shall bear interest at a rate equal to the benefit Prime Rate plus two percent per annum of the amounts so provided, for each month or portion thereof as such amounts shall be outstanding; provided, however, if any Person that was such amounts shall be outstanding on and after the seventh day following the month in which such amounts became due, such amounts shall thereafter bear interest at any time an Indemnitee under a rate equal to 15% per annum of the amounts so provided for each month or portion thereof as such amounts shall be outstanding. The agreements in this Agreement or any other Credit DocumentSection 8 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Accounts Receivable Purchase Agreement (Scient Inc)
Payment of Expenses and Taxes; Indemnification. Each Borrower agrees (a) Borrower agrees to pay (i) or reimburse Agents and Arranger for all reasonable their reasonable, out-of-pocket and documented costs and expenses incurred by each in connection with due diligence in respect of the Agents transactions contemplated by this Agreement, the development, preparation and their respective Affiliatesexecution of, and any amendment, supplement, or modification to, this Agreement and the other Credit Documents, including in connection with an initial syndication, and any other documents prepared in connection herewith or therewith, and the consummation, monitoring, oversight and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of counsel retained by, or for the benefit of, Agents, (b) to pay or reimburse each Lender and Agents for all their costs and expenses incurred in connection with the syndication of the credit facilities provided for hereinexercise, the preparation and administration of the Credit Documents enforcement or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5Agreement, the other Credit Documents and any such other documents, or in connection with the Loans made, or Letters of Credit issued or drawn made hereunder, including all such out-of-pocket costs and expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each LenderLoans, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, disbursements and other charges of counsel to each Lender and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred retained by or asserted against any Indemnitee arising out of, in connection with, or as a result for the benefit of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebyAgents, (iic) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)pay, (iii) any actual or alleged presence or release of Hazardous Materials onindemnify, atand hold harmless each Lender, under or Arranger and Agents from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (cd) To to pay or reimburse Administrative Agent and the extent that Lenders for all reasonable fees, costs and expenses incurred in exercising its rights under Section 8.16 and (e) to pay, indemnify and hold harmless each Lender, Arranger and Agents and their respective Related Parties from and against any and all other liabilities, obligations, losses, damages, fines, fees, penalties, actions, judgments, suits, and reasonable costs, expenses or disbursements of any kind or nature whatsoever, including reasonable fees, disbursements and other charges of counsel, with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents, including any of the foregoing relating to a breach by any Credit Party fails of any representation or warranty in any Credit Document or the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to pay the operations of each Credit Party, any amount required to be paid by them to an Agent of their respective Subsidiaries or an Issuing Lender under paragraph any of their Real Property (a) or all the foregoing in this clause (b) of this subsection 11.5e), each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lendercollectively, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount“Indemnified Liabilities”); provided that the unreimbursed expense Credit Parties shall not have any obligation hereunder to Agents, Arranger or indemnified loss, claim, damage, liability any Lender nor any of their Related Parties with respect to Indemnified Liabilities arising from the gross negligence or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share willful misconduct of the sum party to be indemnified as determined by a final and non-appealable decision of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive repayment of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans all other amounts payable hereunder and Revolving Credit Commitments, as the case may be, at the time.
(d) termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any IndemniteeLender, any Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit the Loans or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify . None of the Administrative AgentLenders, the Lenders and each Issuer forAgents, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Arranger or any of Borrower’s Subsidiaries their respective Related Parties shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification hereby or thereby other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure than solely to the benefit extent such liability results from such Lender, Agent, Arranger or Related Party’s violation of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentSection 12.16.
Appears in 1 contract
Samples: Credit Agreement (TerrAscend Corp.)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent for all reasonable its out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Restatement Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, Restatement Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and the Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such outthe fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee the Agent and the Lenders harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to pay, indemnify, and hold the each Lender and the Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party or any of the Mortgaged Properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (including the cost of successfully defending itself against a claim brought by a party hereto) (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, no Credit Party shall the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause its Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) . All amounts due under this subsection 11.5 Section 9.5 shall be payable promptly not later than 10 days after written demand therefor.
(f) . The Credit Parties agreements in this Section 9.5 shall indemnify survive the Administrative Agent, payment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders amounts payable hereunder and the Issuing Lenders for any broker, finder resignation or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full removal of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.Agent
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Payment of Expenses and Taxes; Indemnification. Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent, the Arranger and each Affiliate of the Agent for all of their respective reasonable out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the development, preparation, negotiation, execution, delivery, syndication of and administration of, and any amendment, supplement or modification to, this Agreement and the credit facilities provided for hereinother Loan Documents and any other documents prepared in connection herewith or therewith, and the preparation consummation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or and thereby, including, without limitation, the reasonable fees and disbursements of Bracewell & Patterson, L.L.P., special counsel to the Agent (but exxxxxxxx the xxxx xx expenses of any such amendment, modification or waiver becomes effectiveother counsel), (iib) to pay or reimburse each Bank and the Agent for all reasonable out-of-pocket its costs and expenses incurred by incurred, during the Issuing Lenders in connection with the issuance, amendment, renewal or extension continuance of any Letter Event of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any LenderDefault, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with any Notes, the Loans madeother Loan Documents and any such other documents, or Letters including, without limitation, the reasonable fees and disbursements of Credit issued or drawn hereunder, including all such out-of-pocket expenses counsel incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties continuance of any Event of the foregoing Persons Default and (each such Person being called an “Indemnitee”c) againstwithout duplication of any other provision contained in this Agreement or any Notes, to pay, indemnify, and hold each Indemnitee Bank and the Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees fees, if any, and any and all liabilities (for which each Bank has not been otherwise reimbursed under this Agreement) with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, any Credit Document Notes, the other Loan Documents and any such other documents.
; and THE BORROWER FURTHER AGREES, WITHOUT DUPLICATION OF ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT OR ANY NOTES, TO PAY, INDEMNIFY, AND HOLD EACH BANK, THE ARRANGER, THE CO-AGENTS AND THE AGENT AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ADVISORS (cEACH AN "INDEMNIFIED PARTY") To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph HARMLESS FROM AND AGAINST, ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (aINCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES AND DISBURSEMENTS OF COUNSEL) or WHICH MAY BE IMPOSED BY, INCURRED BY, OR ASSERTED AGAINST THE INDEMNIFIED PARTIES IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT, ANY NOTES, THE OTHER LOAN DOCUMENTS AND ANY SUCH OTHER DOCUMENTS, INCLUDING THE EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE AND ADMINISTRATION THEREOF (b) of ALL THE FOREGOING IN THIS CLAUSE (D), COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"); PROVIDED, THAT BORROWER SHALL HAVE NO OBLIGATION HEREUNDER TO ANY INDEMNIFIED PARTY WITH RESPECT TO INDEMNIFIED LIABILITIES ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY; AND PROVIDED FURTHER, THAT IT IS THE INTENTION OF BORROWER TO INDEMNIFY THE AGENT AND THE BANKS AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE. The agreements in this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as Section 11.05 shall survive repayment of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Revolving Credit Agreement (Reliant Energy Resources Corp)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees: (a) Borrower agrees to pay (i) or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, or waiver or forbearance of, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of one firm of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation Administrative Agent and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)filing and recording fees and expenses, (iib) to pay or reimburse each Lender and each Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with any rights, privileges, powers or remedies under this Agreement, the Credit Documentsother Loan Documents and any such other documents, including their rights under the fees and - 98- disbursements of one firm of counsel selected by the Administrative Agent, together with any special or local counsel, to the Administrative Agent and, following the occurrence and during the continuance of an Event of Default, not more than one other firm of counsel to the Lenders (it being understood that the Borrower shall not be obligated to reimburse any Lender (other than the Administrative Agent as provided above) for its expenses pursuant to this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
clause (b) The Credit Parties agree except to indemnify the Agents, extent that an Event of Default has occurred and is continuing at the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties time of any of the foregoing Persons proposed amendment or waiver), (each such Person being called an “Indemnitee”c) againstto pay, indemnify, and hold each Indemnitee Lender and each Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation of or administration of, any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
, (cd) To the extent that a Credit Party fails if any Event of Default shall have occurred, to pay or reimburse all reasonable fees and expenses of a financial advisor engaged on behalf of, or for the benefit of, the Agents and the Lenders accruing from and after the occurrence of such Event of Default, (e) to pay, indemnify, and hold each Lender, each Agent, their advisors and affiliates and their respective officers, directors, trustees, employees, agents and controlling persons (each, an “Indemnitee”) harmless from and against any amount required and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to be paid the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans, including the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by them any Indemnitee against any Loan Party under any Loan Document, and (f) to an Agent pay, indemnify, and hold each Indemnitee harmless from and against any actual or an Issuing Lender under paragraph prospective claim, litigation, investigation or proceeding relating to any of the matters described in clauses (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
through (d) To the extent permitted by applicable lawabove, no Credit Party shall assertwhether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding, and each Credit Party hereby waivesregardless of whether such claim, investigation, litigation or proceeding is brought by any claim against any Loan Party, its directors, shareholders or creditors or an Indemnitee, on whether or not any theory Indemnitee is a party thereto and whether or not the Restatement Effective Date has occurred) and the reasonable fees and expenses of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, legal counsel in connection withwith any such claim, litigation, investigation or as a result of, this Agreement or any agreement or instrument contemplated hereby, proceeding (all the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
foregoing in clauses (e) and (f), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of any Indemnitee. All amounts due under this subsection 11.5 Section 10.5 shall be payable promptly not later than 30 days after written demand therefor.
(f) The Credit Parties . Statements payable by the Borrower pursuant to this Section 10.5 shall indemnify be submitted to the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of the Loan Documents, repayment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders amounts payable hereunder. No indemnitee shall be liable for any broker, finder or consultant with respect to damages arising from the use by any agreement, arrangement or understanding made by or on behalf person of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification information or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) materials obtained through electronic, telecommunications or any other Credit Document shall (i) survive payment in full of the Obligationsinformation transmission systems, (ii) survive the release of all or any portion of the Collateral and (iii) inure except to the benefit of any Person that was at any time an Indemnitee under this Agreement extent arising from the gross negligence or any other Credit Document.willful - 99-
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Payment of Expenses and Taxes; Indemnification. Each Company will jointly and severally (a) Borrower agrees to pay (i) or reimburse Laurus for all reasonable of Laurus' out-of-pocket costs and expenses incurred by each in connection with the preparation and execution of, and any amendment, supplement or modification to, the Transaction Documents and the consummation of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof to Laurus (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effectivecounsel is affiliated with Laurus), (iib) pay or reimburse Laurus for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5, or in connection with and the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any verification of the foregoing Persons Accounts Receivable and the credit worthiness of the account debtors, including, without limitation, fees and disbursements of counsel to Laurus (each whether or not such Person being called an “Indemnitee”counsel is affiliated with Laurus) againstand any collateral evaluation (e.g. field examinations, collateral analysis or other business analysis) performed by Laurus or for its benefit as Laurus deems necessary; (c) pay, indemnify, and hold each Indemnitee Laurus harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or of modification of, or any waiver or consent under or in respect of, the Transaction Documents; (d) pay, indemnify, and hold Laurus harmless from and against any Credit Document and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any such kind or nature whatsoever, whether threatened, pending or determined (including attomeys' fees and court costs now or hereafter arising from the enforcement of this clause), (1) with respect to the execution, delivery, enforcement and performance of the Transaction Documents, including, without limitation, the custody, preservation, use or operation of, or the sale of, collection from, or other documents.
(c) To the extent that a Credit Party fails to pay realization upon, any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) collateral, or (b2) arising directly or indirectly from the activities of this subsection 11.5any Company or any subsidiary, each Lender severally agrees to pay to its predecessors in interest, or third parties with whom any Company or any subsidiary has a contractual relationship, or arising directly or indirectly from the violation of any environmental protection, health, or safety law, whether such Agent claims are asserted by any governmental agency or each Revolving Credit Lender agrees to pay such Issuing Lenderany other person or entity, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined 3) arising by virtue of or in connection with any representation or warranty by any Company being untrue as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement date made or any agreement or instrument contemplated herebycovenant by any Company not being performed as and when required hereunder (all of the foregoing, collectively, the Transactions"indemnified liabilities"); provided, that no Company shall have any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant obligation hereunder to Laurus with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall indemnified liabilities arising from (i) survive payment in full the gross negligence or willful misconduct of the ObligationsLaurus, (ii) survive salaries and other amounts payable by Laurus to its employees in the release ordinary course of all business (other than for legal fees specifically billed with respect to a particular matter to which the foregoing relates) or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any expenses incurred by Laurus (other Credit Document.than those specifically
Appears in 1 contract
Samples: Accounts Receivable Purchase Agreement (Vertex Interactive Inc)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse each of the Agents, each Joint Lead Arranger, each Joint Bookrunner and each Syndication Agent for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by each (without duplication) associated with the syndication of the Agents Credit Facilities and their respective Affiliatesincurred in connection with the development, preparation, execution and delivery of, and any amendment, supplement and/or modification to this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of Shearman & Sterling LLP as counsel for to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in connection the case of amounts to be paid on the Closing Date and from time to time thereafter on a quarterly basis) and one counsel in each relevant local jurisdiction approved by, or otherwise retained with the syndication of the credit facilities provided for hereinconsent of, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse the Collateral Agent, the Administrative Agent and each Lender for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative Agent and the Collateral Agent and, to the extent required, one firm or local counsel in each relevant local jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed (which may include a single special counsel acting in multiple jurisdictions), and (iii) to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, the Joint Bookrunners, the Syndication Agents, each Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or disbursements of any counsel for the Agentskind or nature whatsoever (including, the Issuing Lender but not limited to, any action, claim, litigation, investigation, inquiry or any Lenderother proceeding), in connection with the enforcement including, taken as a whole, reasonable and documented or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such invoiced out-of-pocket expenses incurred during fees, reasonable expenses, disbursements and other charges of one firm of counsel for all Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of any workout, restructuring or negotiations in respect existence of such Loans conflict and in connection with the investigating or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of defending any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees) has retained its own counsel, charges of another firm of counsel for such affected Indemnified Party), and disbursements to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) of any counsel such Indemnified Party arising out of or relating to any action, claim, litigation, investigation or other proceeding (and environmental consultants including any inquiry or professionalsinvestigation of the foregoing) for (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any Indemniteeother third person), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties with respect to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other transactions contemplated hereby, (ii) any Loan or Letter of Credit documents or the use of the proceeds therefrom (of the Loans or Letters of Credit, including any refusal by an Issuing Lenders of the foregoing relating to honor a demand for payment under a Letter of Credit if the documents presented in connection violation of, noncompliance with such demand do not strictly comply with the terms of such Letter of Credit)or liability under, (iii) any Environmental Law or any actual or alleged presence of or release Release of Hazardous Materials onapplicable to the Borrower, at, under or from any Mortgaged Property of its Subsidiaries or any other property currently of the Real Property (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (i) the gross negligence, bad faith or formerly owned, leased or otherwise operated by Borrower willful misconduct of such Indemnified Party or any of its Subsidiaries, or any liability under Environmental Laws related Related Parties as determined in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory a final and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, nonappealable judgment as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from jurisdiction, (ii) a material breach of the bad faith, gross negligence, breach obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement by such Indemnified Party or any of its Related Parties as determined in a final and non‑appealable judgment as determined by a court of competent jurisdiction, (iii) in addition to clause (ii) above, in the case of any action, claim, litigation, investigation, inquiry or other Credit Documents or willful misconduct proceeding initiated by the Borrower against the relevant Indemnified Party, solely from a breach of the obligations of such Indemnitees Indemnified Party or its Related Parties under the terms of this Agreement as determined in a final and non-appealable judgment by a court of competent jurisdiction, or (viv) any proceeding between and all recording and filing fees and any and all liabilities with respect to, among Indemnified Parties that does not involve an act or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with omission by the execution and delivery of, or consummation of any direct parent of the transactions contemplated byBorrower, the Borrower or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amountits Restricted Subsidiaries; provided that the unreimbursed expense or indemnified lossAdministrative Agent, claimthe Collateral Agent, damagethe Letter of Credit Issuers, liability or related expensethe Swingline Lender, as the case may beJoint Lead Arrangers, was incurred by or asserted against such Agent or such Issuing Lender the Joint Bookrunners and the Syndication Agents to the extent acting in its their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in clause (i), (ii), (iii) or (iv) of the immediately preceding proviso applies to such person at such time. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” All amounts payable under this Section 13.5(a) shall be determined based upon its share paid within 10 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(da) To No Credit Party nor any Indemnified Party shall have any liability for any punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that, nothing in this Section 13.5(b) shall limit any Credit Party’s indemnity obligations to the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for such special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, are included in any third party claim in connection withwith which an Indemnified Party is entitled to indemnification thereunder. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or as a result of, other information transmission systems in connection with this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of other Credit Documents or the use transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Indemnified Party or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreementits Related Parties.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Third Amendment, Extension and Incremental Assumption Agreement (LPL Financial Holdings Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender, atthe Syndication Agent and the Administrative Agent harmless, under or from any Mortgaged Property or any other property currently or formerly ownedfrom, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender, the Syndication Agent and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent, the Syndication Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of- pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnified Party, (B) disputes arising between or among the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyLenders, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify Syndication Agent and the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant (C) with respect to any agreementsuch Indemnified Party, arrangement or understanding made by or on behalf the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section 9.5 shall survive the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Samples: Credit Agreement
Payment of Expenses and Taxes; Indemnification. (a) Borrower Each Fund, on its own behalf or if applicable on behalf of the investment portfolios thereof which are Borrowers, agrees severally (subject to pay Section 9.5(b) below) (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold each Lender and the Administrative Agent harmless from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to such Borrower, and (iv) to indemnify and hold each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the "Indemnified Parties")) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the actual or proposed use of proceeds, the other Loan Documents and any such other documents.
, the failure of such Borrower to comply with rules, regulations and laws regarding the business of mutual funds, such Borrower's false or incorrect representations or warranties or other information provided in connection with this Credit Agreement, or failure of such Borrower to comply with covenants contained herein or in any Note in a timely manner (c) To all the foregoing in this clause (iv), collectively, the "indemnified liabilities"), provided, that such Fund, on its own behalf or if applicable on behalf of the investment portfolios thereof which are Borrowers shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph arising from (aA) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by willful misconduct of such Indemnified Party, or on behalf of Borrower such Indemnified Party's failure to comply with any material law or any of Borrower’s Subsidiaries in connection with regulation governing the transactions contemplated by hereby, or (B) disputes arising between or among the Indemnitees with respect to the Credit Agreement. The agreements in this AgreementSection shall survive repayment of the Loans and all other amounts payable hereunder.
(gb) The Credit Parties agree Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that any indemnification or other protection provided arises pursuant to Section 9.5(a) is not attributable to any Indemnitee pursuant particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent any such obligation to this Agreement (including pursuant reimburse or indemnify any Indemnified Party is attributable to this subsection 11.5) one or any other Credit Document more Borrowers, then such reimbursement or indemnification shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure be made by each such Borrower to the benefit extent of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentits liability therefor.
Appears in 1 contract
Samples: Credit Agreement (Korea Fund Inc)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and the Collateral Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the Notes and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with Administrative Agent and the syndication of Collateral Agent, (b) to pay or reimburse the credit facilities provided for hereinAdministrative Agent, the preparation Collateral Agent and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) each Lender for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel (including allocated costs of internal counsel) to the Administrative Agent, the Collateral Agent and each Lender, (c) to pay, and indemnify and hold harmless the Administrative Agent, the Collateral Agent and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless Lender from, any and all lossespresent or future stamp, claimsdocumentary or excise taxes or similar charges, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees fees, and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if anythereto, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or payment under, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the Notes, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assertto pay, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify and hold harmless the Administrative Agent, the Lenders Collateral Agent and each Issuer forLender (including each of their respective parents, subsidiaries, officers, directors, employees, agents and hold the Administrative Agent, the Lenders and each Issuing Lender harmless affiliates) from and against, any and all claims for brokerage commissionsclaims, fees demands, liabilities, obligations, losses, damages, penalties, actions, judgments, suits (regardless of whether such Person is a party thereto), costs, settlements, expenses or disbursements of whatever kind or nature arising from, in connection with or with respect to (i) the execution, delivery, enforcement, performance and administration of this Agreement, the Notes, the other compensation made against Loan Documents, or any other documents, (ii) the proposed or actual use of the proceeds of the Loans or (iii) any other Transaction or any transaction or document related thereto or in connection therewith (all the foregoing in this clause (d), collectively, the "indemnified liabilities"); provided that the Borrower shall not have any obligation hereunder to any Lender with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder Collateral Agent or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries such Lender. The agreements in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document Section 9.5 shall (i) survive payment in full repayment of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentObligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees, (a) Borrower agrees to pay (i) or reimburse the Agents for all reasonable out-of-pocket their costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges and disbursements of counsel for to the Agents, (b) to pay or reimburse each Lender and the Agents for all their costs and expenses incurred in connection with the syndication enforcement or preservation of the credit facilities provided for hereinany rights under this Agreement, the preparation and administration of the other Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or and any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lenderother documents, including the reasonable fees, disbursements and other charges of counsel to each Lender and disbursements of any counsel for to the Agents, the Issuing Lender or any Lender(c) to pay, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold harmless each Indemnitee harmless from, Lender and the Agents from any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) to pay or reimburse Collateral Agent for all reasonable fees and expenses incurred in exercising its rights under Section 9.16 and (e) to pay, indemnify and hold harmless each Lender and the Agents and their respective Related Parties from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and costs, expenses or disbursements of any kind or nature whatsoever, including fees, disbursements and other charges of counsel, with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other documents, including any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of each Credit Party, any of its Subsidiaries or any of their Real Property (all the foregoing in this clause (E), collectively, the “indemnified liabilities”); provided, that the Credit Parties shall have no obligation hereunder to the Agents or any Lender nor any of their Related Parties with respect to indemnified liabilities arising from (i) the gross negligence or willful misconduct of the party to be indemnified or one of their Related Parties or (ii) disputes among the Agents, the Lenders and/or their transferees. The agreements in this Section 13.05 shall survive repayment of the Loans and all other amounts payable hereunder and termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any IndemniteeLender, any Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit Loan or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent nor any of their respective Related Parties shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated by this Agreementhereby or thereby.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Plan Support Agreement (Molecular Insight Pharmaceuticals, Inc.)
Payment of Expenses and Taxes; Indemnification. The Borrowers, jointly and severally, agree (a) Borrower agrees to pay (i) or reimburse the Lenders for all their reasonable out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for hereinpreparation, execution and delivery of, and any amendment, supplement, waiver or modification to, this Agreement, the preparation Notes, the other Loan Documents and administration any documents prepared in connection herewith or therewith, and the consummation of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby herein and therein and to pay or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) reimburse the Lenders for all of their reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement of any rights or protection of their rights remedies contemplated hereby and by the Notes, the other Loan Documents and any documents prepared in connection with the Credit Documentstherewith, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lenderindemnify, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of to hold the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee Lenders harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all reasonable liabilities with respect to, or resulting from any delay by the Borrowers in paying, stamp, excise and other similar taxes (other than withholding taxes)taxes in connection with the Loan Documents payable by withholding, if any, if legal, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the Notes, and any such the other documents.
Loan Documents, and (c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5pay, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer forindemnify, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, against any and all claims for brokerage commissionsother reasonable liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, and other compensation made against the Administrative Agentout-of-pocket costs, the Lenders and the Issuing Lenders for expenses or disbursements of any broker, finder kind or consultant nature whatsoever with respect to any agreementthe execution, arrangement or understanding made by or on behalf delivery, enforcement and performance of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
, the Notes and the other Loan Documents (gall of the foregoing, collectively, the “indemnified liabilities”), provided, that, the Borrowers shall have no obligation hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the applicable Lender. A Person seeking to be indemnified under this Section 10.04 shall notify the Borrowers of any event requiring indemnification within ten (10) Business Days following such Person’s receipt of notice of commencement of any action or proceeding, or such Person’s obtaining knowledge of the occurrence of any other event, giving rise to a claim for indemnification hereunder; provided, that, failure to deliver such notice shall not impair or limit the indemnification obligations of the Borrowers except to the extent of actual prejudice. The Credit Parties agree that Borrowers will be entitled (but not obligated) to assume the defense or settlement of any indemnification such action or other protection provided proceeding or to participate in any Indemnitee pursuant negotiations to this Agreement settle or otherwise resolve any claim using counsel of their choice reasonably acceptable to the Person to be indemnified. If the Borrowers elect to assume the defense or settlement of any such action or proceeding, the Person to be indemnified (including pursuant and its counsel) may continue to participate at its own expense in such action or proceeding. The agreements in this subsection 11.5) or any other Credit Document shall (i) survive payment in full repayment of the Obligations, Notes and all other amounts payable hereunder for one (ii1) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentyear.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Lender for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Lender, (ii) to reimburse the Lender for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Lender, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of indemnify and hold the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) Lender harmless from. any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To documents with respect to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assertBorrower, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed iv) to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative AgentLender (and its respective affiliates, directors, partners, officers, agents and employees (collectively the Lenders and each Issuing Lender "Indemnified Parties") harmless from and against, against any and all claims for brokerage commissionsother liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and other compensation made against the Administrative Agentadministration of this Agreement, the Lenders Note and the Issuing Lenders for other Loan Documents, the actual or proposed use of proceeds, the other Loan Documents and any brokersuch other documents (all the foregoing in this clause (iv), finder or consultant collectively, the "indemnified liabilities"), provided, that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any of Borrower’s Subsidiaries in connection such Indemnified Party, (B) with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided respect to any Indemnitee pursuant such Indemnified Party, the failure of such Indemnified Party (and its Affiliates) to comply with any Requirement of Law. The agreements in this Agreement (including pursuant to this subsection 11.5) or any other Credit Document Section shall (i) survive payment in full repayment of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Samples: Credit Agreement (Japan Fund Inc)
Payment of Expenses and Taxes; Indemnification. Borrower agrees (a) Borrower agrees to pay or reimburse the Agent and, (i1) if an Event of Default has occurred and is continuing or (2) if the Borrower requests and is granted a written amendment, restatement, supplement, waiver or other modification hereto that modifies the Financial Covenants in a manner that is more favorable to the Borrower (a “Financial Covenant Amendment”) and (3) there exists an actual or perceived conflict of interest among the Agent and/or the Lenders with respect to such Event of Default or Financial Covenant Amendment, the Lenders for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, negotiation, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the other Credit Documents and the other Transaction Documents and Fourth Amendment Transaction Documents, and the consummation and administration of the Agents Transactions and their respective Affiliatesthe Fourth Amendment Transactions, and any other document, instrument, agreement or transaction related to the foregoing, including the reasonable fees, disbursements and other charges and disbursements of counsel for and other third party advisors to the Agents in connection with Agent and/or the syndication of the credit facilities Lenders; provided for hereinthat, the preparation and administration of the Credit Documents Borrower’s obligation to pay or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including reimburse the reasonable fees, disbursements and other charges of counsel to Lenders in the case of clauses (1) or (2) and (3) above shall be limited to the fees, disbursements and other charges of any one outside counsel to all affected Lenders, taken as a whole, and, if reasonably necessary, one additional local counsel in each relevant jurisdiction to all affected Lenders, taken as a whole, (b) to pay or reimburse the Agent and the Lenders for the Agents, the Issuing Lender or any Lender, all costs and expenses incurred in connection with the enforcement or protection preservation of their any rights under this Agreement, the other Credit Documents and the other Transaction Documents and Fourth Amendment Transaction Documents, including the fees, disbursements and other charges of counsel and third party advisors to each Lender and of counsel to the Agent (including all cost and expenses incurred in connection with any workout or restructuring in respect of the Credit DocumentsLoans, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket costs and expenses incurred during any workoutlegal proceedings, restructuring or negotiations in respect of such Loans or Letters of Credit.
including any proceeding under any Debtor Relief Law), (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee harmless from, the Agent and the Lenders from any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Credit Documents and the other Transaction Documents and Fourth Amendment Transaction Documents, (d) to pay or reimburse the Agent and Lenders, as applicable, for all reasonable fees and expenses incurred in exercising their respective rights under Section 8.02 and (e) to pay, indemnify and hold harmless the Agent, the Lenders and their respective Related Parties from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever, including all fees, disbursements and other charges of counsel and other third party advisors and all fees, costs and expenses incurred in connection with investigating, preparing to defend or defending against, or participating in, or providing evidence in or preparing to serve or serving as a witness with respect to, any action or other proceeding relating to any of the foregoing (whether or not such party is a party to any such action or proceeding), with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents, the Transaction Documents, the Fourth Amendment Transaction Documents, the consummation of the Transactions and the Fourth Amendment Transactions and any other document, instrument, agreement or transaction related to the foregoing, including any of the foregoing relating to the actual, potential or alleged violation of, noncompliance with or liability under, any Environmental Law or any actual, potential or alleged presence or Release of or exposure to Hazardous Materials applicable to the operations of each Credit Party, any of its Subsidiaries or to any of their Real Property, or any actual, potential or alleged natural resource damages or harm or injury to any other property whether or not any Lender, Agent or any of their Related Parties are a mortgagee in possession or the successor-in-interest to any Credit Document Party (all the foregoing in this clause (e), collectively, the “indemnified liabilities”); provided that (i) the Credit Parties shall have no obligation hereunder to the Agent or any Lender nor any of their Related Parties with respect to indemnified liabilities that result from the gross negligence or willful misconduct of such Person seeking indemnification, as determined by a final non-appealable judgment of a court of competent jurisdiction and any such other documents.
(ii) except as otherwise specified in clause (c) above, this Section 12.05 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. Except as agreed by the Agent and the Borrower, all amounts due under this Section 12.05 shall be paid within thirty (30) days after written request therefor. The agreements in this Section 12.05 shall survive the resignation of any Agent, the replacement of any Lender and the repayment in full in cash of the Loans and all other Obligations and the termination of this Agreement. To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any IndemniteeLender, Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement other Transaction Document or instrument contemplated herebyFourth Amendment Transaction Documents, the Transactions, the Fourth Amendment Transactions, any Loan, Letter of Credit Loan or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent nor any of their respective Related Parties shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification hereby or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.thereby. 135
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) Borrower The Company agrees to pay (i) on demand all reasonable out-of-pocket costs and expenses incurred by each of the Agents Administrative Agent in connection with the syndication, preparation, execution, delivery, closing, administration, modification, and their respective Affiliatesamendment of this Agreement, including the other Loan Documents, and the other documents to be delivered hereunder and any waiver or consent with respect to any provision thereof, including, without limitation, the reasonable fees, charges fees and disbursements expenses of counsel for the Agents Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents. The Company further agrees to pay on demand all reasonable costs and expenses of the Administrative Agent and the Lenders (including, without limitation, reasonable attorneys' fees and expenses) in connection with any Event of Default and, if an Event of Default exists, the syndication enforcement (whether through negotiations, legal proceedings, or otherwise) of the credit facilities provided for herein, Loan Documents and the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall other documents to be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn delivered hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree Company agrees to pay, indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee Lender (including the Issuing Bank) and the Agents harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To The Company agrees to indemnify and hold harmless the extent Agents and each Lender (including the Issuing Bank) and each of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, penalties, judgments, suits, costs (including settlement costs) and expenses (including reasonable attorneys' fees and expenses) that a may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including in connection with any investigation, litigation, or proceeding or preparation of defense in connection therewith) (i) the Recapitalization, the Recapitalization Documents, the Loan Documents, any of the transactions contemplated herein or therein, any Letter of Credit Party fails to pay or the use thereof or the actual or proposed use of the proceeds of the Loans (including any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (aof the foregoing arising from the negligence of the Indemnified Party) or (bii) the actual or alleged presence of this subsection 11.5Materials of Environmental Concern on any property now or hereafter owned or leased by the Company or any Subsidiary, each Lender severally agrees except to pay to the extent such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability loss, liability, penalty, cost or related expenseexpense is found in a final, as non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence, bad faith or willful misconduct. In the case may beof an investigation, was incurred by litigation or asserted against other proceeding to which the indemnity in this Section 11.5(c) applies, such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” indemnity shall be determined based upon effective whether or not such investigation, litigation or proceeding is brought by the Company, its share of directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party transactions contemplated hereby waives, are consummated. The Company agrees not to assert any claim against the Agents, any IndemniteeLender (including the Issuing Bank), any of their Affiliates, or any of their respective directors, officers, employees, attorneys, agents and advisers, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, of or as a result of, this Agreement or any agreement or instrument contemplated herebyotherwise relating to the Loan Documents, the TransactionsRecapitalization Documents, any Loan, of the transactions contemplated herein or in any Recapitalization Document or the actual or proposed use of any Letter of Credit or the use proceeds of the proceeds thereofLoans.
(ed) All amounts due under Without prejudice to the survival of any other agreement of the Company hereunder, the agreements and obligations of the Company contained in this subsection Section 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify survive the Administrative Agent, termination of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders Commitments and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf Letters of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and payment in full of the Loans and all other Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Credit Agreement (Juno Lighting Inc)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and WCM for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Credit Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including together with the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (iib) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes and each Lenderany other Credit Document, including, without limitation, the reasonable fees and each disbursements of their Affiliatescounsel to the Administrative Agent and to the Lenders (including reasonable allocated costs of in-house legal counsel of Administrative Agent), officers(c) on demand, directorsto pay, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender, the Administrative Agent and WCM harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, paying stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To defend, indemnify and hold harmless the extent permitted by applicable law, no Credit Party shall assertAdministrative Agent and the Lenders, and each Credit Party hereby waivestheir respective Affiliates and their respective employees, any claim agents, officers and directors, from and against any Indemniteeand all claims, on any theory demands, penalties, fines, liabilities, settlements, damages, costs and expenses of liabilitywhatever kind or nature known or unknown, for specialcontingent or otherwise, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, or in connection withany way relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Credit Parties, any Investment Loan Subsidiary or the Properties, or as a result ofany orders, this Agreement requirements or demands of Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor, and (e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agentto pay, the Lenders and each Issuer forindemnify, and hold each Lender, the Administrative AgentAgent and WCM and their Affiliates, the Lenders employees, officers and each Issuing Lender directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the use, or proposed use, of proceeds of the Loans or Letters of Credit, (f) to pay, indemnify, and hold each Lender, the Administrative Agent and WCM and their Affiliates, employees, officers and directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever to the extent arising from third party claims for brokerage commissionswith respect to the execution, fees delivery, enforcement, performance and administration of the Credit Documents and any such other compensation made against documents; and (g) to pay, indemnify, and hold each Lender, the Administrative Agent and WCM and their Affiliates, employees, officers and directors harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever to the extent arising from or related to any Investment Loan Subsidiary (all of the foregoing, collectively, the “indemnified liabilities”); provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent, the Lenders and the Issuing Lenders for WCM or any broker, finder or consultant Lender with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full willful misconduct of the ObligationsAdministrative Agent, (ii) WCM or such Lender, as determined by a court of competent jurisdiction. The agreements in this Section 9.5 shall survive the release of all or any portion repayment of the Collateral Loans, Notes, LOC Obligations and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any all other Credit Documentamounts payable hereunder.
Appears in 1 contract
Samples: Credit Agreement (Capitalsource Inc)
Payment of Expenses and Taxes; Indemnification. Parent and the Borrower agree, jointly and severally, (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and the Arranger for all their reasonable and documented out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for hereinsyndication, the preparation and administration of execution of, and any amendment, supplement or modification to, this Agreement and the Credit other Loan Documents and any other documents prepared in connection herewith or any amendmentstherewith, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated consummated, and the administration of the transactions contemplated hereby and thereby, including the reasonable and documented fees and disbursements of a single counsel (and appropriate local and special counsel) to the Administrative Agent and Arranger and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date or, if the Closing Date does not occur, such other date as the Administrative Agent shall deem appropriate) and from time to time thereafter on a quarterly basis or any such amendmentother periodic basis as the Administrative Agent shall deem appropriate; (b) to pay or reimburse the Administrative Agent, modification or waiver becomes effective), (ii) the Lenders and the Issuing Lenders for all their respective reasonable and documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all the fees and disbursements of one law firm for the Administrative Agent, the Lenders and the Issuing Lenders, except where such out-of-pocket expenses incurred during relate to any workoutlitigation or any other formal proceeding commenced by the Administrative Agent, restructuring the Lenders or negotiations the Issuing Lenders in respect which the Administrative Agent, the Lenders and the Issuing Lenders are not the prevailing party; provided that (i) absent an actual or perceived conflict of such Loans or Letters of Credit.
interest, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (b) The Credit Parties agree and (ii) if an actual or perceived conflict of interest shall exist, Borrower and Parent shall not be required to indemnify the Agentspay for more than one counsel (and appropriate local and special counsel)) under this clause (b) for all similarly situated Lenders; (c) to pay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender, the Issuing Lenders and the Administrative Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxesbut excluding any taxes or increased costs otherwise not subject to the gross-up provided for by Section 2.16(a)), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
, and (cd) to pay, indemnify, and hold each Lender, the Issuing Lenders, the Administrative Agent and the Arranger and their respective officers, directors, employees, trustees, Affiliates, agents, advisors and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law and the reasonable fees and expenses of legal counsel or consultants in connection therewith (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided, that (i) Parent and the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or wilful misconduct of such Indemnitee; (ii) absent an actual or perceived conflict of interest, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (d) for all Indemnitees and (iii) if an actual or perceived conflict of interest shall exist, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (d) for all similarly situated Indemnitees. Without limiting the foregoing, and to the extent permitted by applicable law, Parent and the Borrower agree not to assert and to cause their respective Subsidiaries not to assert, and hereby waive and agree to cause their respective Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, Parent and the Borrower agree not to assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. All amounts due under this Section 10.5 shall be payable not later than thirty (30) days after written demand therefor. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of this Agreement and the repayment of the Loans and all other amounts payable hereunder. To the extent that a Credit Party fails Parent and the Borrower fail to pay any amount required to be paid by them to an the Administrative Agent or an any Issuing Lender under paragraph (a) or (b) of this subsection 11.5Section 10.5, each Lender severally agrees to pay to such the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share Percentage Interest (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such the Administrative Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay within thirty (i30) days after receipt of an invoice therefor, all costs and expenses in connection with the preparation, negotiation, execution, delivery, registration and administration of this Agreement, the Note and the other Credit Documents and any amendment, supplement or modification to or extension or restatement of, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel and of technical advisors and consultants for the Agents in connection Administrative Agent with respect thereto and with respect to advising the syndication Administrative Agent as to its rights and responsibilities under this Agreement; provided, however, that so long as no Event of the credit facilities provided for hereinDefault shall have occurred and be continuing, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof Borrower’s prior written consent (whether or not the transactions contemplated hereby or thereby to be unreasonably withheld) shall be consummated obtained before the Administrative Agent retains a technical advisor or other technical consultant. The Borrower further agrees to pay on demand all losses, costs and expenses, if any such amendment, modification or waiver becomes effective(including reasonable counsel fees and expenses), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the preservation of any rights of the Lender under, or the enforcement of, or protection legal advice in respect of their the rights in connection with or responsibilities of the Lender under, this Agreement, the Note and the other Credit Documents, including their rights under this subsection 11.5losses, costs and expenses sustained by the Lender as a result of any failure by any Borrower to perform or observe its obligations contained herein or in the Note held by the Lender or in connection with any refinancing or restructuring of the Loans made, or Letters Loan in the nature of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any a “workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) ” The Credit Parties agree Borrower further agrees to indemnify the Agents, the Issuing Lender and each Lenderpay on demand, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstto indemnify, and hold each Indemnitee Lender and each Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents
(b) Each Credit Party agrees to pay, indemnify, and hold each Lender, each Agent, their respective Affiliates and their respective directors, partners, managers, principals, officers, employees, agents, consultants and representatives (collectively, the “Indemnified Parties”) harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, claims, judgments, awards, fines, settlements, suits, costs, charges, expenses or disbursements of any kind or nature whatsoever (irrespective of whether the Indemnified Party is named as a party to any litigation or proceeding and whether it is joint, several or joint and several) with respect to the execution, delivery, enforcement, performance and administration of any Credit Document, any such other documents, agreements and Instruments or the transactions contemplated thereby, the use, or proposed use, of proceeds of the Loans, or otherwise with respect to any Project or Property or any activity, occurrence or event thereon or associated therewith (all of the foregoing, collectively, a “Third Party Claim”), and will reimburse the Indemnified Parties for all costs and expenses (including reasonable attorneys’ fees and expenses) on demand as they are incurred in connection with the investigation of, preparation for or defense or prosecution of any pending or threatened Third Party Claim or any action or proceeding arising therefrom; provided, however, that the Borrower shall not have any obligation hereunder to the Administrative Agent or any Lender with respect to Third Party Claims arising from the gross negligence or willful misconduct of the Administrative Agent or any such Lender, as determined by a court of competent jurisdiction in a final and non-appealable judgment; provided, further, that (i) each Indemnified Party shall promptly notify the Borrower in writing upon becoming aware of the initiation of any Third Party Claim against it, (ii) the Borrower shall be entitled to participate in the defense of any such Third Party Claim and, if the Borrower so chooses, to assume the defense, at the Borrower’s expense, of any such Third Party Claim with counsel selected by the Borrower (it being understood that any Indemnified Party shall have the right to participate in such defense and employ counsel separate from the counsel employed by the Borrower, and that such counsel shall be at the expense of such Indemnified Party unless such Indemnified Party shall have been advised by counsel that there may be legal defenses available to it that are inconsistent with or in addition to those available to the Borrower, in which case such counsel shall be at the Borrower’s expense) and (iii) no Indemnified Party shall settle any Third Party Claim without the Borrower’s prior written consent (such consent not to be unreasonably withheld). The agreements in this Section 10.6 shall survive repayment of the Loans, Notes and all other amounts payable hereunder.
(c) To the extent that a Credit Party fails In no event shall any party hereto be liable to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, other party hereto on any theory of liability, liability for any special, indirect, consequential or punitive damages (as opposed to direct including any loss of profits, business or actual damagesanticipated savings) arising out of, in connection with, or as a result of, of this Agreement or the other Credit Documents. Each party hereto hereby waives, releases and agrees (and shall cause each other Credit Party to waive, release and agree) not to sxx upon any agreement such claim for any special, indirect, consequential or instrument contemplated herebypunitive damages, whether or not accrued and whether or not known or suspected to exist in its favor. Nothing contained in this Section 10.6(c) shall limit or affect the Transactions, any Loan, Letter of Credit or the use indemnification and reimbursement obligations of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries set forth in connection with the transactions contemplated by this AgreementSection 10.6(b).
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees to The Companies will pay (i) or reimburse Access Capital for all of Access Capital's reasonable out-of-pocket costs and reasonable expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication preparation and execution of, and any amendment, supplement or modification to, any of the credit facilities provided for hereinTransaction Documents and the consummation of the transactions contemplated hereby and thereby, including, without limitation, the preparation fees and administration disbursements of the Credit Documents or any amendments, modifications or waivers of the provisions thereof outside counsel to Access Capital (whether or not the transactions contemplated hereby such counsel is affiliated with Access Capital).
(b) The Companies will pay or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) reimburse Access Capital for all its reasonable out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5and the verification of the Accounts Receivable and the credit worthiness of the account debtors, including, without limitation, fees and disbursements of outside counsel to Access Capital (whether or not such counsel is affiliated with Access Capital) and any collateral evaluation (e.g. field examinations, collateral analysis or other business analysis) performed by Access Capital or for its benefit as Access Capital deems necessary, as well as for the costs at Access Capital's regularly posted rates, for overnight mail delivery, UCC and tax lien searches and tax lien update searches and bank wire transfer fees. Access Capital shall have the right to visit the Companies at any time to review and photocopy the books and records of the Companies, or in connection with the Loans madeportions thereof, or Letters of Credit issued or drawn as Access Capital shall determine to facilitate its work hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bc) The Credit Parties agree to indemnify the AgentsCompanies will pay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Access Capital harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or of modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeTransaction Documents.
(d) To The Companies will pay, indemnify, and hold Access Capital harmless from and against any and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, whether threatened, pending or determined (including reasonable attorneys' fees and court costs now or hereafter arising from the extent permitted by applicable enforcement of this clause), (1) with respect to the execution, delivery, enforcement and performance of the Transaction Documents, including, without limitation, the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, any collateral, or (2) arising directly or indirectly from the activities of any of the Companies or any subsidiary, its predecessors in interest, or third parties with whom it has a contractual relationship, or arising directly or indirectly from the violation of any environmental protection, health, or safety law, no Credit Party shall assertwhether such claims are asserted by any governmental agency or any other person, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages3) arising out of, by virtue of or in connection with, with any representation or warranty by any of the Companies being untrue as a result of, this Agreement of the date made or any agreement or instrument contemplated herebycovenant by the Companies not being performed as and when required hereunder (all of the foregoing, collectively, the Transactions"indemnified liabilities"); provided, any Loan, Letter of Credit or that the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 Companies shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant have no obligation hereunder to Access Capital with respect to any agreementindemnified liabilities arising from (i) the gross negligence or willful misconduct of Access Capital, arrangement (ii) salaries and other amounts payable by Access Capital to its employees in the ordinary course of business (other than for legal fees specifically billed with respect to a particular matter to which the foregoing relates) or understanding made (iii) expenses incurred by or on behalf Access Capital (other than those specifically enumerated above) in the ordinary course of Borrower or any of Borrower’s Subsidiaries business in connection with the transactions contemplated by performance of its obligations hereunder. To the extent that Access Capital shall incur costs or expenses, or shall provide amounts to the Companies in excess of amounts otherwise delivered hereunder as Initial Payments, all such amounts shall bear interest at a monthly rate equal to 2% of the amounts so provided, for each month or portion thereof as such amounts shall be outstanding. The obligations in this Section shall survive the termination of this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Accounts Receivable Purchase Agreement (Emergent Group Inc/Ny)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay or reimburse the Arranger, the Administrative Agent and the Collateral Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the arrangement and syndication of the credit facilities provided for herein, any due diligence related hereto (iincluding without limitation any evaluation of collateral), the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the Notes and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and disbursements of external counsel to the Arranger, the Administrative Agent and the Collateral Agent, (b) all reasonable out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders Bank in connection with the issuance, amendment, renewal amendment or extension of any Letter of Credit or any demand for payment thereunder thereunder, (c) to pay or reimburse the Administrative Agent, the Collateral Agent, each Issuing Bank and (iii) each Lender for all reasonable out-of-pocket its costs and expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights under this Agreement, the Notes, the other Loan Documents and any such other documents, including, without limitation, the reasonable fees and disbursements of counsel (including allocated costs of internal counsel) to the Administrative Agent, the Collateral Agent, each Issuing Bank and each Lender, (d) to pay, and indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Lender and each Issuing Bank from, any and all present or future stamp, documentary or excise taxes or similar charges, any and all recording and filing fees, and any and all liabilities with respect thereto, which may be payable or determined to be payable in connection with the Credit Documents, including their rights under this subsection 11.5execution and delivery of, or in connection with consummation or administration of any of the Loans made86 transactions contemplated by, or Letters of Credit issued payment under, or drawn hereunderany amendment, including all such out-supplement or modification of-pocket expenses incurred during , or any workout, restructuring waiver or negotiations consent under or in respect of such Loans or of, this Agreement, the Notes, the Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing other Loan Documents and any such other documents, and (e) to pay, and indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Lender and each Lender, and Issuing Bank (including each of their Affiliatesrespective parents, subsidiaries, officers, directors, employees, agents, trustees, advisors trustees and controlled parties of any of the foregoing Persons attorneys-in-fact) (each such Person being called an “Indemnitee”"INDEMNITEE") from and against, and hold each Indemnitee harmless from, any and all claims, demands, liabilities, obligations, losses, claims, damages, liabilities and related expensespenalties, including the reasonable feesactions, charges and judgments, suits, costs, settlements, expenses or disbursements of any counsel (and environmental consultants whatever kind or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee nature arising out offrom, in connection with, with or as a result of with respect to (i) the execution or delivery of any Credit Loan Document or the First Mortgage Indenture or any other agreement or instrument contemplated herebyhereby or thereby, the performance by the parties to the Credit Loan Documents or the First Mortgage Indenture of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebythereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an any Issuing Lenders Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under of Environmental Concern on or from any Mortgaged Property property owned or any other property currently or formerly owned, leased or otherwise operated by the Borrower or any of its Subsidiaries, or any liability under Environmental Laws Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party theretothereto (all the foregoing in this clause (e), collectively, the "INDEMNIFIED LIABILITIES"); provided PROVIDED that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, indemnified liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct or bad faith of such Indemnitees or Indemnitee (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as suchIndemnitee's parent, subsidiaries, officers, directors, employees, agents, trustees or attorneys-in-fact). For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall each party hereto agrees not to assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Loan Document, the First Mortgage Indenture or any agreement or instrument contemplated herebyhereby or thereby, the Transactions, any Loan, Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under . The agreements in this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify SECTION 9.5 supercede the Administrative Agent, reimbursement and indemnification provisions in the Lenders and each Issuer forCommitment Letter, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full repayment of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentObligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Payment of Expenses and Taxes; Indemnification. The Company will (a) Borrower agrees to pay (i) or reimburse Xxxxxx Capital for all reasonable of Xxxxxx Capital's out-of-pocket costs and expenses incurred by each in connection with the preparation and execution of, and any amendment, supplement or modification to, the Transaction Documents and the consummation of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)to Xxxxxx Capital, (iib) pay or reimburse Xxxxxx Capital for all reasonable out-of-pocket costs and expenses actually incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder Xxxxxx Capital and (iii) all reasonable out-of-pocket expenses incurred paid by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, Xxxxxx Capital in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5, or in connection with and the Loans made, or Letters verification of Credit issued or drawn hereunderthe Accounts Receivable and the credit worthiness of the Customers, including all such out-of-pocket expenses incurred during any workoutwithout limitation, restructuring or negotiations in respect fees and disbursements of such Loans or Letters of Credit.
counsel to Xxxxxx Capital; (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Xxxxxx Capital harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, paying any stamp, excise excise, and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, the Transaction Documents; (d) pay for monthly statements at $0.73 each plus all postage expended by Xxxxxx Capital to mail invoices and otherwise collect the accounts; (e) pay the fees and interest set forth on Exhibit “B” attached hereto and made a part thereof; (f) pay for field examinations at the rate of eight hundred fifty dollars per person per day plus expenses; (g) pay, indemnify and hold Xxxxxx Capital harmless from and against any Credit Document and all claims, liabilities, obligations, losses, potential losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any such other documents.
kind or nature whatsoever, whether threatened, pending or determined (c) To including attorney's fees and court costs now or hereafter arising from this Agreement or any activities of the extent that a Credit Party fails Company (referred to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount"indemnified liabilities"); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” Company shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, have no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed obligation hereunder to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant Xxxxxx Capital with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any Xxxxxx Capital. The covenants of Borrower’s Subsidiaries in connection with this paragraph shall survive the transactions contemplated by termination of this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Commercial Financing Agreement (Midas Medici Group Holdings, Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Bank for its reasonable out-of-pocket costs, fees and expenses paid or incurred by each in connection with the development, preparation, negotiation and execution of, and any amendment, supplement or modification to, the Commitment Letter, this Agreement and the other Borrower Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel to the Bank or accountant’s fees and including without limitation a fee of Two Hundred Fifty Dollars ($250.00) for any amendment to the Agents in connection with Letter of Credit, all taxes and assessments, recording fees, the syndication letter of credit transfer fee and the fees of any third party consultants which provide services to the Bank performing services as may, from time to time, be required by the Bank, provided that attorney’s fees related to the development, preparation, negotiation and execution of the credit facilities provided for hereinCommitment Letter, this Agreement and other documents related to the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or initial transaction shall not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)exceed $25,000, (ii) to reimburse the Bank for all its reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Related Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Bank, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold the Bank harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement or the Related Documents and any Credit Document such other documents with respect to such Borrower, and (iv) to indemnify and hold the Bank (and its respective affiliates, directors, officers, agents and employees (collectively, the “Indemnified Parties”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the Related Documents and any such other documents, including but not limited to (A) any breach by Borrower of any representation, warranty or covenant made in or pursuant to this Agreement; (B) any failure by Borrower to comply with any applicable Legal Requirement or federal or state laws or regulations pertaining to the offer and sale of the Bonds; or (C) any failure by Borrower to comply with any applicable Legal Requirement or the laws or regulations of any jurisdiction (all the foregoing in this clause (iv), collectively, the “Indemnified Liabilities”), provided, that such Borrower shall have no obligation hereunder to any Indemnified Party with respect to Indemnified Liabilities arising solely from such Indemnified Party’s gross negligence or willful misconduct. Nothing contained herein is intended to limit the Borrower’s obligations under Section 2.04.
(b) Neither the Bank nor any of the officers, directors, employees or agents of the Bank shall be liable or responsible for: (i) the use made of the Letter of Credit or for any acts or omissions of the Trustee or any Letter of Credit beneficiary; (ii) the validity, sufficiency or genuineness of any documents, or endorsements, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged, (iii) payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear adequate reference to the Letter of Credit; or (iv) any other circumstances in making payment under the Letter of Credit in accordance with its terms provided, however, the Bank shall be liable to the extent of any direct damages suffered by the Borrower as a result of the Bank’s (y) willful misconduct or gross negligence in determining whether documents presented under the Letter of Credit comply with the terms thereof, or (z) the Bank’s willful failure to pay under the Letter of Credit after presentation to it by the Trustee of a draft and certificate complying with the terms and conditions of the Letter of Credit. The determination of whether a draft has been presented under the Letter of Credit prior to the Letter of Credit Termination Date or whether a draft drawn under the Letter of Credit or any accompanying document or instrument is in proper and sufficient form shall be made by the Bank in its sole discretion, which determination shall be conclusive and binding upon the Borrower, absent manifest error. The Borrower hereby waives any right to object to any payment made under the Letter of Credit against a draft with accompanying documents in the forms provided for in the Letter of Credit but varying in punctuation, capitalization, spelling or similar matters of form. IN NO EVENT SHALL THE BANK EVER BE LIABLE FOR CONSEQUENTIAL OR PUNITIVE DAMAGES, ANY RIGHT OR CLAIM THERETO BEING EXPRESSLY AND UNCONDITIONALLY WAIVED.
(c) To The Borrower agrees that it does not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, principal, parent, subsidiary or other affiliate of Bank (collectively, the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent “Bank’s Affiliates”) arising out of or an Issuing Lender under paragraph (a) in connection with this Agreement or (b) of this subsection 11.5, each Lender severally the transactions contemplated hereby. The Borrower agrees to pay look solely to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as Bank and its assets for the case may be, pro rata share (determined as satisfaction of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, any liability or related expenseobligation arising out of or in connection with this Agreement or the transactions contemplated hereby, as and further agrees not to sxx or otherwise seek to enforce any personal obligation against any of Bank’s Affiliates with respect to any matters arising out of or in connection with this Agreement or the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timetransactions contemplated hereby.
(d) To Without limiting the extent permitted by applicable lawgenerality of the foregoing, no Credit Party shall assertthe Borrower hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Bank’s Affiliates, and each Credit Party hereby waives, unconditionally and irrevocably releases and discharges Bank’s Affiliates from any claim and all liability whatsoever which may now or hereafter accrue in favor of the Borrower against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) Bank’s Affiliates arising out of, of or in connection with, or as a result of, with this Agreement or any agreement the transactions contemplated hereby except for the Bank’s gross negligence or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereofwillful misconduct.
(e) All amounts due under The provisions of this subsection 11.5 Section 9.05 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify survive the Administrative Agentissuance of the Letter of Credit, the Lenders and each Issuer forperformance of the Obligations of the Borrower hereunder, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf termination of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Connecticut Water Service Inc / Ct)
Payment of Expenses and Taxes; Indemnification. The Company will (a) Borrower agrees to pay (i) or reimburse Portxx Xxxital for all reasonable of Portxx Xxxital's out-of-pocket costs and expenses incurred by each in connection with the preparation and execution of, and any amendment, supplement or modification to, the Transaction Documents and the consummation of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)to Portxx Xxxital, (iib) pay or reimburse Portxx Xxxital for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5, or in connection with and the Loans made, or Letters verification of Credit issued or drawn hereunderthe Accounts Receivable and the credit worthiness of the Customers, including all such out-of-pocket expenses incurred during any workoutwithout limitation, restructuring or negotiations in respect fees and disbursements of such Loans or Letters of Credit.
counsel to Portxx Xxxital; (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Portxx Xxxital harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, paying any stamp, excise excise, and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, the Transaction Documents; (d) pay for monthly statements at $0.53 each plus all postage expended by Portxx Xxxital to mail invoices and otherwise collect the accounts; (e) pay a processing and administration fee of no percent of the value of each invoice; (f) pay, indemnify and hold Portxx Xxxital harmless from and against any Credit Document and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any such other documents.
kind or nature whatsoever, whether threatened, pending or determined (c) To including attorney's fees and court costs now or hereafter arising from this Agreement or any activities of the extent that a Credit Party fails Company (referred to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount"indemnified liabilities"); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” Company shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, have no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed obligation hereunder to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant Portxx Xxxital with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any Portxx Xxxital. The covenants of Borrower’s Subsidiaries in connection with this paragraph shall survive the transactions contemplated by termination of this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Company will (a) Borrower agrees to pay (i) or reimburse Pxxxxx Capital for all reasonable of Pxxxxx Capital's out-of-pocket costs and expenses incurred by each in connection with the preparation and execution of, and any amendment, supplement or modification to, the Transaction Documents and the consummation of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)to Pxxxxx Capital, (iib) pay or reimburse Pxxxxx Capital for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under the Credit Transaction Documents, including their rights under this subsection 11.5, or in connection with and the Loans made, or Letters verification of Credit issued or drawn hereunderthe Accounts Receivable and the credit worthiness of the Customers, including all such out-of-pocket expenses incurred during any workoutwithout limitation, restructuring or negotiations in respect fees and disbursements of such Loans or Letters of Credit.
counsel to Pxxxxx Capital; (bc) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Pxxxxx Capital harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, paying any stamp, excise excise, and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, the Transaction Documents; (d)pay for monthly statements at $0.73 each plus all postage expended by Pxxxxx Capital to mail invoices and otherwise collect the accounts; (e) pay a processing and administration fee as defined in Exhibit “B” Attached hereto and made a part thereof; (f) pay for field examinations at the rate of eight hundred fifty dollars per person per day plus expenses; (g) pay, indemnify and hold Pxxxxx Capital harmless from and against any Credit Document and all claims, liabilities, obligations, losses, potential losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any such other documents.
kind or nature whatsoever, whether threatened, pending or determined (c) To including attorney's fees and court costs now or hereafter arising from this Agreement or any activities of the extent that a Credit Party fails Company (referred to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount"indemnified liabilities"); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” Company shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, have no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed obligation hereunder to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant Pxxxxx Capital with respect to any agreement, arrangement indemnified liabilities arising from the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any Pxxxxx Capital. The covenants of Borrower’s Subsidiaries in connection with this paragraph shall survive the transactions contemplated by termination of this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Commercial Financing Agreement (EMTA Holdings, Inc.)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees:
(a) Borrower agrees to pay (i) or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, or waiver or forbearance of, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of one firm of counsel to the Administrative Agent and filing and recording fees and expenses,
(b) to pay or reimburse each Lender and each Agent for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation all its costs and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with any rights, privileges, powers or remedies under this Agreement, the Credit Documentsother Loan Documents and any such other documents, including their rights under the fees and disbursements of one firm of counsel selected by the Administrative Agent, together with any special or local counsel, to the Administrative Agent and, following the occurrence and during the continuance of an Event of Default, not more than one other firm of counsel to the Lenders (it being understood that the Borrower shall not be obligated to reimburse any Lender (other than the Administrative Agent as provided above) for its expenses pursuant to this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
clause (b) The Credit Parties agree except to indemnify the Agents, extent that an Event of Default has occurred and is continuing at the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties time of any of the foregoing Persons proposed amendment or waiver),
(each such Person being called an “Indemnitee”c) againstto pay, indemnify, and hold each Indemnitee Lender and each Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from from, any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation of or administration of, any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.,
(d) To the extent permitted by applicable lawif any Event of Default shall have occurred, no Credit Party shall assert, to pay or reimburse all reasonable fees and each Credit Party hereby waives, any claim against any Indemnitee, expenses of a financial advisor engaged on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out behalf of, in connection with, or as a result for the benefit of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter Agents and the Lenders accruing from and after the occurrence of Credit or the use such Event of the proceeds thereof.Default,
(e) to pay, indemnify, and hold each Lender, each Agent, their advisors and affiliates and their respective officers, directors, trustees, employees, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans, including the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document, and
(f) to pay, indemnify, and hold each Indemnitee harmless from and against any actual or prospective claim, litigation, investigation or proceeding relating to any of the matters described in clauses (a) through (d) above, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding, and regardless of whether such claim, investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or an Indemnitee, whether or not any Indemnitee is a party thereto and whether or not the Restatement Effective Date has occurred) and the reasonable fees and expenses of legal counsel in connection with any such claim, litigation, investigation or proceeding (all the foregoing in clauses (e) and (f), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of any Indemnitee. All amounts due under this subsection 11.5 Section 10.5 shall be payable promptly not later than 30 days after written demand therefor.
(f) The Credit Parties . Statements payable by the Borrower pursuant to this Section 10.5 shall indemnify be submitted to the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of the Loan Documents, repayment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders amounts payable hereunder. No indemnitee shall be liable for any broker, finder or consultant with respect to damages arising from the use by any agreement, arrangement or understanding made by or on behalf person of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification information or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) materials obtained through electronic, telecommunications or any other Credit Document shall (i) survive payment in full of the Obligationsinformation transmission systems, (ii) survive the release of all or any portion of the Collateral and (iii) inure except to the benefit extent arising from the gross negligence or willful misconduct of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentsuch indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the Notes and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Agent, (iib) to pay or reimburse the Agent and each Lender for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel to the Agent and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”c) againstto pay, and indemnify and hold harmless the Agent and each Indemnitee harmless Lender from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the Notes, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assertto pay, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, indemnify and hold harmless the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders Agent and each Issuer forLender (including each of their respective parents, subsidiaries, officers, directors, employees, agent and hold the Administrative Agent, the Lenders and each Issuing Lender harmless affiliates) from and against, any and all claims for brokerage commissionsother claims, fees and other compensation made against the Administrative Agentdemands, the Lenders and the Issuing Lenders for any brokerliabilities, finder obligations, losses, damages, penalties, actions, judgments, suits, costs, settlements, expenses or consultant disbursements of whatever kind or nature arising from, in connection with or with respect to any agreementthe execution, arrangement or understanding made by or on behalf delivery, enforcement, performance and administration of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or , the Notes, the other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) Loan Documents, or any other Credit Document shall (i) survive payment in full documents or the use of the Obligations, (ii) survive the release of all or any portion proceeds of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement Loans or any other Credit Documentpurpose (all the foregoing in this clause (d), collectively, the 'indemnified liabilities'); provided that the Borrower shall not have any obligation hereunder to the Lenders with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the Agent or such Lender. The agreements in this Section 9.5 shall survive repayment of the Obligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Payment of Expenses and Taxes; Indemnification. (a) Borrower Each Fund, on ---------------------------------------------- its own behalf or if applicable on behalf of the investment portfolios thereof which are Borrowers, agrees severally (subject to pay Section 9.5(b) below) (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold each Lender and the Administrative Agent harmless from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
documents with respect to such Borrower, and (civ) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, indemnify and hold each Lender severally agrees to pay to such and the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender(and their respective affiliates, as directors, officers, agents and employees (collectively with the case may be, such Lender’s or Revolving Credit Lender’s, as Administrative Agent and the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyLenders, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e"Indemnified Parties")) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, against any and all claims for brokerage commissionsother ------------------- liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and other compensation made against the Administrative Agentadministration of this Agreement, the Lenders actual or proposed use of proceeds, the other Loan Documents and any such other documents (all the Issuing Lenders for foregoing in this clause (iv), collectively, the "indemnified ----------- liabilities"), provided, that such Fund, on its own behalf or if applicable on ----------- -------- behalf of the investment portfolios thereof which are Borrowers shall have no obligation hereunder to any broker, finder or consultant Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by willful misconduct of such Indemnified Party, (B) disputes arising between or on behalf among the Lenders or (C) with respect to any such Indemnified Party, the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section shall survive repayment of the transactions contemplated by this AgreementLoans and all other amounts payable hereunder.
(gb) The Credit Parties agree Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that any indemnification or other protection provided arises pursuant to Section 9.5(a) is not attributable to any Indemnitee pursuant particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent any such obligation to this Agreement (including pursuant reimburse or indemnify any Indemnified Party is attributable to this subsection 11.5) one or any other Credit Document more Borrowers, then such reimbursement or indemnification shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure be made by each such Borrower to the benefit extent of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentits liability therefor.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) pay or reimburse the Administrative Agent and WCM for all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including together with the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or Administrative Agent and to the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom Lenders (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter reasonable allocated costs of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Creditin-house legal counsel), (iii) any actual or alleged presence or release of Hazardous Materials onon demand, atto pay, under or from any Mortgaged Property or any other property currently or formerly ownedindemnify, leased or otherwise operated by Borrower or any of its Subsidiariesand hold each Lender, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiariesthe Administrative Agent and WCM harmless from, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, paying stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation consummation, administration or enforcement of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
, and (civ) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5pay, indemnify, and hold each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders Issuing Lender, the Swingline Lender and WCM and each Issuer forof their respective Affiliates, employees, agents, officers and hold the Administrative Agent, the Lenders and directors (each Issuing Lender an "Indemnified Person") harmless from and against, any and all claims for brokerage commissionsother liabilities, fees and other compensation made against the Administrative Agentobligations, the Lenders and the Issuing Lenders for losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any broker, finder kind or consultant nature whatsoever with respect to the execution, delivery, enforcement, performance or administration of the Credit Documents or any agreementsuch other documents and the use, arrangement or understanding made proposed use, of proceeds of the Loans or otherwise relating in any way to any of the foregoing (all of the foregoing, collectively, "Indemnified Liabilities"); provided that the Borrower shall not have any obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of such Indemnified Person, as determined in a final, non-appealable judgment by a court of competent jurisdiction.
(b) The Borrower further agrees to defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims (including claims of third parties), demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or on behalf nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation or alleged violation of, noncompliance or alleged noncompliance, with or liability under, any Environmental Law applicable to the operations of any Borrower or any of Borrower’s its Subsidiaries in connection with or the transactions contemplated Properties, or any orders, requirements or demands of Governmental Authorities related thereto, including reasonable attorney's and consultant's fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor, as determined by this Agreementa court of competent jurisdiction.
(gc) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to agreements in this Agreement (including pursuant to this subsection 11.5) or any other Credit Document Section 9.5 shall (i) survive payment in full repayment of the ObligationsLoans, (ii) survive the release of Notes and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees The Borrowers agree to pay (i) or reimburse the Agent for all reasonable and documented out- of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable, documented and out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges fees and disbursements of one counsel to the Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrowers prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Agent shall deem appropriate,
(b) The Borrowers agree (i) to pay or reimburse each Lender and the Agent for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation all its costs and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender other Loan Documents and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expensesother documents, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebyAgent, (ii) any Loan or Letter of Credit or to pay, indemnify, and hold the use of Agent and the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)harmless from, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, and (iii) to pay or reimburse each Lender and the Agent for any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents; provided that to the extent that the costs and expenses referred to in this clause (iii) consist of fees, costs and expenses of counsel, Borrowers shall only be obligated to pay such reasonable and documented out-of-pocket fees, costs and expenses for one firm of counsel for Agent and one firm of counsel for the Lenders, and, if necessary, a single firm of local counsel to Agent together with the Lenders in each appropriate jurisdiction and a single special or regulatory counsel to Agent to the extent necessary or appropriate in each specialty area, in each case, incurred in connection with the Loan Documents or related transactions.
(c) To The Borrowers agree to pay, indemnify, and hold the each Lender and the Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to (i) the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans, (ii) the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party or any of the Mortgaged Properties, or (iii) actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (including the cost of successfully defending itself against a claim brought by a party hereto) (all the foregoing in this clause (c), collectively, the “Indemnified Liabilities”); provided, that the Borrowers shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent that such Indemnified Liabilities are found by a Credit Party fails final and non-appealable decision of a court of competent jurisdiction to pay any amount required to be paid by them to an Agent have resulted from the gross negligence or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnitee. Without limiting the unreimbursed expense or indemnified lossforegoing, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to the extent permitted by applicable law, no Credit Party shall the Borrowers agree not to assert and to cause its Subsidiaries not to assert, and each Credit Party hereby waiveswaive and agree to cause their Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(ed) All amounts due under this subsection 11.5 Section 9.5 shall be payable promptly not later than ten (10) days after written demand therefor.
(f) . The Credit Parties agreements in this Section 9.5 shall indemnify survive the Administrative Agent, payment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders amounts payable hereunder and the Issuing Lenders for any broker, finder resignation or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full removal of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentAgent.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees The Borrowers agree to pay (i) all reasonable out-of-pocket expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of Table of Contents their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an the Issuing Lenders Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower Holdings or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower Holdings or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees Indemnitee, or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an the Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such the Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such the Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.. Table of Contents
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each the Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders Lender for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Holdings or any of Borrower’s Subsidiaries Subsidiary in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Language Line Services Holdings, Inc.)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Administrative Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect the fees and disbursements of such Loans or Letters of Credit.
(b) The Credit Parties agree counsel to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Administrative Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender and the Administrative Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
, and (cd) To to pay, indemnify, and hold each Lender and the extent that a Credit Party fails Administrative Agent and their respective officers, directors, employees, Affiliates, agents, trustees and investment advisers and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Loan Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the Commitments, use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable unreimbursed expense to the operations of Holdings, CC Operating, any of their respective Subsidiaries or indemnity payment is sought) any of such unpaid amounttheir properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided that the unreimbursed expense Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or indemnified losswillful misconduct of such Indemnitee. Without limiting the foregoing, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to the extent permitted by applicable law, no Credit Party shall the Borrower agrees not to assert and to cause the Subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause the Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) . All amounts due under this subsection 11.5 Section 10.5 shall be payable promptly not later than 10 days after written demand therefor.
. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to Treasurer and General Counsel (fTelephone No. (000) The Credit Parties shall indemnify 000-0000) (Telecopy No. (000) 000-0000), at the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent, . The agreements in this Section 10.5 shall survive the Lenders termination of this Agreement and each Issuer for, and hold the Administrative Agent, repayment of the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissionsother amounts payable hereunder. It is understood and agreed that, fees to the extent not precluded by a conflict of interest, each Indemnitee shall endeavor to reasonably work cooperatively with the Borrower with a view to minimizing the legal and other compensation made against expenses associated with any defense and any potential settlement or judgment. To the Administrative Agent, the Lenders extent reasonably practicable and the Issuing Lenders for any broker, finder or consultant with respect not disadvantageous to any agreementIndemnitee, arrangement it is anticipated that a single counsel will be used. Settlement of any claim or understanding made by or on behalf of Borrower or litigation involving any of Borrower’s Subsidiaries in connection with material indemnified amount will require the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full approval of the Obligations, Borrower (ii) survive the release of all or any portion of the Collateral and (iii) inure not to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentbe unreasonably withheld).
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse each of the Agents, each Joint Lead Arranger, each Joint Bookrunner and the Syndication Agent for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by each (without duplication) associated with the syndication of the Agents Credit Facilities and their respective Affiliatesincurred in connection with the development, preparation, execution and delivery of, and any amendment, supplement and/or modification to this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of Xxxxxxxx & Sterling LLP as counsel for to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Effective Date (in connection the case of amounts to be paid on the Effective Date and from time to time thereafter on a quarterly basis) and one counsel in each relevant local jurisdiction approved by, or otherwise retained with the syndication of the credit facilities provided for hereinconsent of, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse the Collateral Agent, the Administrative Agent and each Lender for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative Agent and the Collateral Agent and, to the extent required, one firm or local counsel in each relevant local jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed (which may include a single special counsel acting in multiple jurisdictions), and (iii) to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, the Joint Bookrunners, the Syndication Agent, each Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or disbursements of any counsel for the Agentskind or nature whatsoever (including, the Issuing Lender but not limited to, any action, claim, litigation, investigation, inquiry or any Lenderother proceeding), in connection with the enforcement including, taken as a whole, reasonable and documented or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such invoiced out-of-pocket expenses incurred during fees, reasonable expenses, disbursements and other charges of one firm of counsel for all Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of any workout, restructuring or negotiations in respect existence of such Loans conflict and in connection with the investigating or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of defending any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees) has retained its own counsel, charges of another firm of counsel for such affected Indemnified Party), and disbursements to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) of any counsel such Indemnified Party arising out of or relating to any action, claim, litigation, investigation or other proceeding (and environmental consultants including any inquiry or professionalsinvestigation of the foregoing) for (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any Indemniteeother third person), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties with respect to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, 206 the other Credit Documents and any such other transactions contemplated hereby, (ii) any Loan or Letter of Credit documents or the use of the proceeds therefrom (of the Loans or Letters of Credit, including any refusal by an Issuing Lenders of the foregoing relating to honor a demand for payment under a Letter of Credit if the documents presented in connection violation of, noncompliance with such demand do not strictly comply with the terms of such Letter of Credit)or liability under, (iii) any Environmental Law or any actual or alleged presence of or release Release of Hazardous Materials onapplicable to the Borrower, at, under or from any Mortgaged Property of its Subsidiaries or any other property currently of the Real Property (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (i) the gross negligence, bad faith or formerly owned, leased or otherwise operated by Borrower willful misconduct of such Indemnified Party or any of its Subsidiaries, or any liability under Environmental Laws related Related Parties as determined in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory a final and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, nonappealable judgment as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from jurisdiction, (ii) a material breach of the bad faith, gross negligence, breach obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable judgment as determined by a court of competent jurisdiction, (iii) in addition to clause (ii) above, in the case of any action, claim, litigation, investigation, inquiry or other Credit Documents or willful misconduct proceeding initiated by the Borrower against the relevant Indemnified Party, solely from a breach of the obligations of such Indemnitees Indemnified Party or its Related Parties under the terms of this Agreement as determined in a final and non-appealable judgment by a court of competent jurisdiction, or (viv) any proceeding between and all recording and filing fees and any and all liabilities with respect to, among Indemnified Parties that does not involve an act or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with omission by the execution and delivery of, or consummation of any direct parent of the transactions contemplated byBorrower, the Borrower or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amountits Restricted Subsidiaries; provided that the unreimbursed expense or indemnified lossAdministrative Agent, claimthe Collateral Agent, damagethe Letter of Credit Issuers, liability or related expensethe Swingline Lenders, as the case may beJoint Lead Arrangers, was incurred by or asserted against such the Joint Bookrunners and the Syndication Agent or such Issuing Lender to the extent acting in its their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in clause (i), (ii), (iii) or (iv) of the immediately preceding proviso applies to such person at such time. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” All amounts payable under this Section 13.5(a) shall be determined based upon its share paid within 10 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(db) To No Credit Party nor any Indemnified Party shall have any liability for any punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Effective Date); provided that, nothing in this Section 13.5(b) shall limit any Credit Party’s indemnity obligations to the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for such special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, are included in any third party claim in connection withwith which an Indemnified Party is entitled to indemnification thereunder. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or as a result of, other information transmission systems in connection with this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of other Credit Documents or the use transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Indemnified Party or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.its Related Parties. 207
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse the Agent for all reasonable its out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for to the Agents Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in connection with the syndication case of amounts to be paid on the credit facilities provided for herein, Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse the each Lender and the Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all such outthe fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and each Lenderof counsel to the Agent, and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee the Agent and the Lenders harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To to pay, indemnify, and hold the each Lender and the Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an "INDEMNITEE") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Loan Party or any of the Mortgaged Properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the "INDEMNIFIED LIABILITIES"), PROVIDED, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, no Credit Party shall the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and each Credit Party hereby waiveswaives and agrees to cause its Subsidiaries to waive, all rights for contribution or any claim other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) . All amounts due under this subsection 11.5 Section 9.5 shall be payable promptly not later than 10 days after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse each of the Agents, each Joint Lead Arranger, each Joint Bookrunner and the Syndication Agent for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by each (without duplication) associated with the syndication of the Agents Credit Facilities and their respective Affiliatesincurred in connection with the development, preparation, execution and delivery of, and any amendment, supplement and/or modification to this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements 203 LPL – Conformed A&R Credit Agreement of Shearman & Sterling LLP as counsel for to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Effective Date (in connection the case of amounts to be paid on the Effective Date and from time to time thereafter on a quarterly basis) and one counsel in each relevant local jurisdiction approved by, or otherwise retained with the syndication of the credit facilities provided for hereinconsent of, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse the Collateral Agent, the Administrative Agent and each Lender for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative Agent and the Collateral Agent and, to the extent required, one firm or local counsel in each relevant local jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed (which may include a single special counsel acting in multiple jurisdictions), and (iii) to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, the Joint Bookrunners, the Syndication Agent, each Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or disbursements of any counsel for the Agentskind or nature whatsoever (including, the Issuing Lender but not limited to, any action, claim, litigation, investigation, inquiry or any Lenderother proceeding), in connection with the enforcement including, taken as a whole, reasonable and documented or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such invoiced out-of-pocket expenses incurred during fees, reasonable expenses, disbursements and other charges of one firm of counsel for all Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of any workout, restructuring or negotiations in respect existence of such Loans conflict and in connection with the investigating or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of defending any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees) has retained its own counsel, charges of another firm of counsel for such affected Indemnified Party), and disbursements to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) of any counsel such Indemnified Party arising out of or relating to any action, claim, litigation, investigation or other proceeding (and environmental consultants including any inquiry or professionalsinvestigation of the foregoing) for (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any Indemniteeother third person), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties with respect to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other transactions contemplated hereby, (ii) any Loan or Letter of Credit documents or the use of the proceeds therefrom (of the Loans or Letters of Credit, including any refusal by an Issuing Lenders of the foregoing relating to honor a demand for payment under a Letter of Credit if the documents presented in connection violation of, noncompliance with such demand do not strictly comply with the terms of such Letter of Credit)or liability under, (iii) any Environmental Law or any actual or alleged presence of or release Release of Hazardous Materials onapplicable to the Borrower, at, under or from any Mortgaged Property of its Subsidiaries or any other property currently of the Real Property (all the foregoing in this clause (iii), collectively, the “indemnified liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (i) the gross negligence, bad faith or formerly owned, leased or otherwise operated by Borrower willful misconduct of such Indemnified Party or any of its Subsidiaries, or any liability under Environmental Laws related Related Parties as determined in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory a final and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, nonappealable judgment as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from jurisdiction, (ii) a material breach of the bad faith, gross negligence, breach obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable judgment as determined by a court of competent jurisdiction, (iii) in addition to clause (ii) above, in the case of any action, claim, litigation, investigation, inquiry or other proceeding initiated by the Borrower against the relevant 204 LPL – Conformed A&R Credit Documents or willful misconduct Agreement Indemnified Party, solely from a breach of the obligations of such Indemnitees Indemnified Party or its Related Parties under the terms of this Agreement as determined in a final and non-appealable judgment by a court of competent jurisdiction, or (viv) any proceeding between and all recording and filing fees and any and all liabilities with respect to, among Indemnified Parties that does not involve an act or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with omission by the execution and delivery of, or consummation of any direct parent of the transactions contemplated byBorrower, the Borrower or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amountits Restricted Subsidiaries; provided that the unreimbursed expense or indemnified lossAdministrative Agent, claimthe Collateral Agent, damagethe Letter of Credit Issuers, liability or related expensethe Swingline Lenders, as the case may beJoint Lead Arrangers, was incurred by or asserted against such the Joint Bookrunners and the Syndication Agent or such Issuing Lender to the extent acting in its their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in clause (i), (ii), (iii) or (iv) of the immediately preceding proviso applies to such person at such time. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” All amounts payable under this Section 13.5(a)13.5(a) shall be determined based upon its share paid within 10 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
(da) To No Credit Party nor any Indemnified Party shall have any liability for any punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Effective Date); provided that, nothing in this Section 13.5(b) shall limit any Credit Party’s indemnity obligations to the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for such special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, are included in any third party claim in connection withwith which an Indemnified Party is entitled to indemnification thereunder. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or as a result of, other information transmission systems in connection with this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of other Credit Documents or the use transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Indemnified Party or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreementits Related Parties.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. Parent and the Borrower agree, jointly and severally, (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and the Arrangers for all their reasonable and documented out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for hereinsyndication, the preparation and administration of execution of, and any amendment, supplement or modification to, this Agreement and the Credit other Loan Documents and any other documents prepared in connection herewith or any amendmentstherewith, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated consummated, and the administration of the transactions contemplated hereby and thereby, including the reasonable and documented fees and disbursements of a single counsel (and appropriate local and special counsel) to the Administrative Agent and the Arrangers and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date or, if the Closing Date does not occur, such other date as the Administrative Agent shall deem appropriate) and from time to time thereafter on a quarterly basis or any such amendmentother periodic basis as the Administrative Agent shall deem appropriate; (b) to pay or reimburse the Administrative Agent, modification or waiver becomes effective), (ii) the Lenders and the Issuing Lenders for all their respective reasonable and documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all the fees and disbursements of one law firm for the Administrative Agent, the Lenders and the Issuing Lenders, except where such out-of-pocket expenses incurred during relate to any workoutlitigation or any other formal proceeding commenced by the Administrative Agent, restructuring the Lenders or negotiations the Issuing Lenders in respect which the Administrative Agent, the Lenders and the Issuing Lenders are not the prevailing party; provided that (i) absent an actual or perceived conflict of such Loans or Letters of Credit.
interest, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (b) The Credit Parties agree and (ii) if an actual or perceived conflict of interest shall exist, Borrower and Parent shall not be required to indemnify the Agentspay for more than one counsel (and appropriate local and special counsel)) under this clause (b) for all similarly situated Lenders; (c) to pay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender, the Issuing Lenders and the Administrative Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxesbut excluding any taxes or increased costs otherwise not subject to the gross-up provided for by Section 2.16(a)), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
, and (cd) to pay, indemnify, and hold each Lender, the Issuing Lenders, the Administrative Agent and the Arrangers and their respective officers, directors, employees, trustees, Affiliates, agents, advisors and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law and the reasonable fees and expenses of legal counsel or consultants in connection therewith (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided, that (i) Parent and the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or wilful misconduct of such Indemnitee; (ii) absent an actual or perceived conflict of interest, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (d) for all Indemnitees and (iii) if an actual or perceived conflict of interest shall exist, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (d) for all similarly situated Indemnitees. Without limiting the foregoing, and to the extent permitted by applicable law, Parent and the Borrower agree not to assert and to cause their respective Subsidiaries not to assert, and hereby waive and agree to cause their respective Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, Parent and the Borrower agree not to assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. All amounts due under this Section 10.5 shall be payable not later than thirty (30) days after written demand therefor. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of this Agreement and the repayment of the Loans and all other amounts payable hereunder. To the extent that a Credit Party fails Parent and the Borrower fail to pay any amount required to be paid by them to an the Administrative Agent or an any Issuing Lender under paragraph (a) or (b) of this subsection 11.5Section 10.5, each Lender severally agrees to pay to such the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share Percentage Interest (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such the Administrative Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” This Section 10.5 shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant not apply with respect to Taxes other than any agreementTaxes that represent losses, arrangement or understanding made by or on behalf of Borrower or claims, damages, etc. arising from any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreementnon-Tax claim.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
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Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Lender for its reasonable out-of-pocket costs and expenses (up to a maximum of $5,000) incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Lender, (ii) to reimburse the Lender for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Lender, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of indemnify and hold the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) Lender harmless from. any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
(c) To documents with respect to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assertBorrower, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed iv) to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative AgentLender (and its respective affiliates, directors, partners, officers, agents and employees (collectively the Lenders and each Issuing Lender "Indemnified Parties") harmless from and against, against any and all claims for brokerage commissionsother liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever arising from or in connection with the execution, delivery, enforcement, performance and other compensation made against the Administrative Agentadministration of this Agreement, the Lenders Note and the Issuing Lenders for other Loan Documents, the actual or proposed use of proceeds, the other Loan Documents and any brokersuch other documents (all the foregoing in this clause (iv), finder or consultant collectively, the "indemnified liabilities"), provided, that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any agreementIndemnified Party, arrangement the negligence or understanding made by or on behalf willful misconduct of Borrower or any of Borrower’s Subsidiaries in connection such Indemnified Party, (B) with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided respect to any Indemnitee pursuant such Indemnified Party, the failure of such Indemnified Party (and its Affiliates) to comply with any Requirement of Law. The agreements in this Agreement (including pursuant to this subsection 11.5) or any other Credit Document Section shall (i) survive payment in full repayment of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) Each Borrower agrees severally, and not jointly or jointly and severally, (subject to pay Section 9.5(b)) (i) all to reimburse, according to its Pro Rata Allocation, the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all respect to such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or to indemnify and hold harmless each Lender and the Administrative Agent from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to such Borrower, and (iv) to indemnify and hold harmless each Lender and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent and the Lenders, the “Indemnified Parties”)) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees) incurred by any Indemnified Party or asserted against any Indemnified Party by any third party or by any Fund or the Borrower and arising from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the actual or proposed use of proceeds, the other Loan Documents and any such other documents.
, the failure of such Borrower to comply with rules, regulations and laws regarding the business of mutual funds, such Borrower’s false or incorrect representations or warranties or other information provided in connection with this Agreement, or failure of such Borrower to comply with covenants contained herein or in any Note in a timely manner (c) To all the foregoing in this clause (iv), collectively, the “indemnified liabilities”), provided, that such Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities to the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5arising from, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreementIndemnified Party, arrangement the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any such Indemnified Party. The agreements in this Section shall survive termination of Borrower’s Subsidiaries in connection with the transactions contemplated by this AgreementCommitments and repayment of the Loans and all other amounts payable hereunder.
(gb) The Credit Parties agree Notwithstanding any other provision in this Agreement to the contrary, to the extent any obligation to reimburse or indemnify any Indemnified Party that any indemnification or other protection provided arises pursuant to Section 9.5(a) is not attributable to any Indemnitee pursuant particular Borrower, then such reimbursement or indemnification shall be made by each Borrower (ratably, in accordance with its Pro Rata Allocation). To the extent any such obligation to this Agreement (including pursuant reimburse or indemnify any Indemnified Party is attributable to this subsection 11.5) one or any other Credit Document more Borrowers, then such reimbursement or indemnification shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure be made by each such Borrower to the benefit extent of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentits liability therefor.
Appears in 1 contract
Samples: Credit Agreement (T. Rowe Price Multi-Sector Account Portfolios, Inc.)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) all to reimburse the Administrative Agent for its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (ii) to reimburse each Lender and the Administrative Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with respect to the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges fees and disbursements of any counsel (to each Lender and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Administrative Agent, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold each Lender, atthe Syndication Agent and the Administrative Agent harmless, under or from any Mortgaged Property or any other property currently or formerly ownedfrom, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to the Borrower, and (iv) to indemnify and hold each Lender, the Syndication Agent and the Administrative Agent (and their respective affiliates, directors, officers, agents and employees (collectively with the Administrative Agent, the Syndication Agent and the Lenders, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent Borrower’s use of proceeds or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5the commitment, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as from failure of the time Borrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided in connection with this Agreement, or from failure of the Borrower to comply with covenants in a timely manner (all the foregoing in this clause (iv) , collectively, the “indemnified liabilities”), provided, that the applicable unreimbursed expense Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (A) with respect to any Indemnified Party, the gross negligence or indemnity payment is sought) willful misconduct of such unpaid amount; provided that Indemnified Party, (B) disputes arising between or among the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyLenders, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify Syndication Agent and the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant (C) with respect to any agreementsuch Indemnified Party, arrangement or understanding made by or on behalf the failure of Borrower or such Indemnified Party (and its Affiliates) to comply with any Requirement of Borrower’s Subsidiaries Law. The agreements in connection with this Section 9.5(a) shall survive the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to termination of this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Samples: Credit Agreement (Kayne Anderson Midstream/Energy Fund, Inc.)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees, (a) Borrower agrees to pay (i) or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred by each in connection with due diligence in respect of the transactions contemplated by this Agreement, the development, preparation and execution of, and any amendment, supplement, or modification to, this Agreement and the other Credit Documents, including in connection with an initial syndication, and any other documents prepared in connection herewith or therewith, and the consummation, monitoring, oversight and administration (for the avoidance of doubt, whether performed directly by the Agents or by the Servicer) of the transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges and disbursements of counsel for to the Agents; (b) to pay or reimburse each Lender and the Agents in connection with the syndication of the credit facilities provided for herein, the preparation all their reasonable and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, the other Credit Documents and any such other documents, or in connection with the Loans made, or Letters of Credit issued or drawn made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each LenderLoans, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, disbursements and other charges of counsel to each Lender and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated herebyAgents, (iic) any Loan or Letter of Credit or to pay, indemnify, and hold harmless each Lender and the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or Agents from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (cd) To to pay or reimburse Collateral Agent for all reasonable fees, costs and expenses incurred in exercising its rights under Section 8.16 and (e) to pay, indemnify and hold harmless each Lender and the Agents and their respective Related Parties from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented (to the extent that a Credit Party fails available) reasonable out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented (to pay any amount required the extent available) fees, disbursements and other charges of counsel, with respect to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Credit Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable unreimbursed expense to the operations of each Credit Party, any of their respective Subsidiaries or indemnity payment is sought) any of such unpaid amounttheir Real Property (all the foregoing in this clause (e), collectively, the “Indemnified Liabilities”); provided that the unreimbursed expense Credit Parties shall not have any obligation hereunder to the Agents or indemnified loss, claim, damage, liability any Lender nor any of their Related Parties with respect to Indemnified Liabilities arising from the gross negligence or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share willful misconduct of the sum party to be indemnified as determined by a final and non-appealable decision of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive repayment of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans all other amounts payable hereunder and Revolving Credit Commitments, as the case may be, at the time.
(d) termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any IndemniteeLender, any Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit the Loans or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent nor any of their respective Related Parties shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby. [***] = Certain confidential information contained in this document, marked by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee brackets, is filed with the Securities and Exchange Commission pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full Rule 24b-2 of the ObligationsSecurities Exchange Act of 1934, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentas amended.
Appears in 1 contract
Samples: Credit Agreement (PARETEUM Corp)
Payment of Expenses and Taxes; Indemnification. (a) Borrower agrees to pay (i) all to reimburse Lender for its reasonable and documented out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, waiver. supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)to Lender, (ii) to reimburse Lender for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection Agreement with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsBorrower, the Issuing Lender other Loan Documents and each Lenderany such other documents, and each of their Affiliatesincluding, officerswithout limitation, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and documented fees and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Lender, (iii) any actual or alleged presence or release of Hazardous Materials onto indemnify and hold Lender harmless, atfrom, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any Credit Document such other documents with respect to Borrower, except any such taxes referred to in Section 2.11(a)(i) imposed with respect to an assignment, and (iv) to indemnify and hold Lender (and its affiliates, directors, officers, agents and employees (collectively with Lender, the “Indemnified Parties”)) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, reasonable and documented costs, reasonable and documented out-of-pocket expenses or disbursements of any kind or nature whatsoever (including but not limited to reasonable and documented attorney’s fees and settlement costs) arising directly or indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents.
(c) To , from Borrower’s use of proceeds, from failure of Borrower to comply with rules, regulations and laws regarding the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent business of mutual funds, from false or an Issuing Lender under paragraph (a) incorrect representations or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent warranties or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; other information provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection withwith this Agreement, or as from failure of Borrower to comply with covenants in a result oftimely manner (all the foregoing in this clause (iv), this Agreement or any agreement or instrument contemplated herebycollectively, the Transactions“indemnified liabilities”), provided, that Borrower shall have no obligation hereunder to any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless Indemnified Party with respect to indemnified liabilities arising from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement Indemnified Party that are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or understanding made by or on behalf willful misconduct of Borrower or any such Indemnified Party. The agreements in this Section 9.5 shall survive the termination of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive and the payment in full of the Obligations, (ii) survive the release of Loans and all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Apollo Tactical Income Fund Inc.)
Payment of Expenses and Taxes; Indemnification. The Borrower agrees (a) Borrower agrees to pay (i) or reimburse each Agent for all reasonable its out-of-pocket costs and expenses incurred in connection with the development, negotiation, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the other Credit Documents, the Commitment Order, the Final DIP Order and any other documents prepared in connection herewith or therewith, and the alternative forms of financing proposals requested by each the Debtor, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges fees and disbursements of counsel for the Agents in connection with the syndication to each Agent, all costs and expenses of negotiating, documenting and obtaining court approval of the credit facilities provided for herein, Debtor’s entry into the preparation Commitment Documents and administration of related documents and the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not and the transactions contemplated hereby described in the Commitment Documents and the Credit Documents, and search, filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Funding Date (in the case of amounts to be paid on the Funding Date) and from time to time thereafter on a monthly basis or thereby such other periodic basis as such Agent shall be consummated or any such amendment, modification or waiver becomes effective)deem appropriate, (iib) to pay or reimburse each Lender and each Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights in connection with under this Agreement, the other Credit Documents, including their rights under this subsection 11.5the Commitment Order, or the Final DIP Order and any such other documents prepared in connection with the Loans made, herewith or Letters of Credit issued or drawn hereundertherewith, including all such outthe reasonable fees and disbursements of counsel (including the allocated fees and expenses of in-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(bhouse counsel) The Credit Parties agree to indemnify the Agents, the Issuing each Lender and to each LenderAgent and (c) to pay, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender and each Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents, the Commitment Order, the Final DIP Order and any such other documents.
(c) To documents prepared in connection herewith or therewith. The Credit Parties shall jointly and severally indemnify and hold harmless each Agent, each Lender and each of their respective Affiliates, and each of the extent that a Credit Party fails to pay any amount required to be paid by them respective officers, directors, employees, agents, advisors, attorneys, consultants, and representatives of each of the foregoing in their respective capacities as such to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing LenderAffiliate thereof, as the case applicable, (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, obligations, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including fees and disbursements of counsel), joint or several (“Indemnified Amounts”), that may bebe imposed on, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted or awarded against any Indemnified Party (including in connection with, arising out of or relating to any investigation, litigation or proceeding or the preparation of any defense in connection therewith), whether or not any such Indemnified Party is a party thereto, in each case in any manner relating to, arising out of or in connection with or by reason of the DIP Facility, or the use or intended use of the proceeds of the DIP Facility, the Case, the Credit Documents (including any amounts payable by an Agent or a Lender pursuant to any indemnification or reimbursement provisions contained therein), the Commitment Documents, the Commitment Order, the Final DIP Order or the alternative forms of financing proposals requested by the Debtor, or the transactions contemplated hereby or thereby (which shall include any act, event or transaction related or attendant to any thereof), or in connection with any investigation of any matters contemplated hereby or thereby (collectively, the “Indemnified Matters”) except that the Credit Parties shall not have any obligation to an Indemnified Party pursuant to this Section 12.5 with respect to any Indemnified Amounts relating to any Indemnified Matter to the extent of any portion of such Issuing Lender Indemnified Amounts directly and primarily caused by, or directly and primarily resulting from, the gross negligence or willful misconduct of that Indemnified Party as determined in its capacity as sucha final non-appealable judgment or order by a court of competent jurisdiction. For purposes hereofIn the case of an investigation, a Lender’s litigation or Revolving Credit Lender’s “pro rata share” other proceeding to which the indemnity in this paragraph applies, such indemnity shall be determined based upon effective whether or not such investigation, litigation or proceeding is brought by the Borrower or any of its share Significant Subsidiaries, or by any directors, security holders or creditors of any of the sum of foregoing, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto. Each Credit Party further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Group Member for or in connection with the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit CommitmentsIndemnified Matters, as the case may be, at the time.
(d) To except to the extent permitted such liability is determined in a final non-appealable judgment by applicable lawa court of competent jurisdiction to have been directly and primarily caused by, or directly and primarily resulting from, such Indemnified Party’s gross negligence or willful misconduct. In no Credit event, however, shall any Indemnified Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, be liable on any theory of liability, liability for any special, indirect, consequential or punitive damages (as opposed including any loss of profits, business or anticipated savings). Without limiting the foregoing, and to direct or actual damages) arising out ofthe extent permitted by applicable law, in connection witheach Credit Party agrees not to assert and to cause its Subsidiaries not to assert, or as a result ofand hereby waives and agrees to cause its Subsidiaries to waive, this Agreement all rights for contribution or any agreement other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or instrument contemplated herebynature, the Transactionsunder or related to Environmental Laws, that any Loan, Letter of Credit them might have by statute or the use of the proceeds thereof.
(e) otherwise against any Indemnified Party. All amounts due under this subsection 11.5 Section shall be payable promptly not later than ten days after written demand therefor.
(f) The . Statements payable by a Credit Parties Party pursuant to this Section shall indemnify be submitted to the Person and at the address of the Borrower set forth in Section 12.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent, . The agreements in this Section shall survive repayment of the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any Loans and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder Obligations payable hereunder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Sea Containers LTD /Ny/)
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse the Lender for all of its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation due diligence expenses, consultant's fees and expenses, travel expenses and the reasonable feesfees and disbursements of counsel, charges (ii) to pay or reimburse the Lender for all its costs and expenses incurred in connection with the enforcement, monitoring or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)Lender, (iii) any actual or alleged presence or release of Hazardous Materials onto pay, atindemnify, under or from any Mortgaged Property or any other property currently or formerly ownedand hold the Lender harmless from, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
documents and (civ) To to pay, indemnify, and hold the extent that a Credit Party fails Lender and its Affiliates and each of the Lender's and its Affiliates' respective officers, directors, employees, agents and representatives (including all professionals) (each an "Indemnified Party") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) the execution, delivery, enforcement, performance and administration of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated herebyAgreement, the Transactions, any Loan, Letter of Credit other Loan Documents or the use of the proceeds thereof.
of the Loan and any such other documents (eall the foregoing in this clause (iv) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agentcollectively, the Lenders and each Issuer for"Indemnified Liabilities"), and hold provided, however, that the Administrative Agent, Borrower shall have no obligation hereunder to the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreementIndemnified Liabilities arising from the gross negligence or willful misconduct of the Lender. Notwithstanding anything herein to the contrary, arrangement or understanding made by or on behalf the agreements in this Section 8.5 shall survive repayment of Borrower or any the Loan and all other amounts payable hereunder and the termination of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(gb) The Credit Parties agree Promptly after receipt by an Indemnified Party under this Section 8.5 of notice of any claim or the commencement of any action, the Indemnified Party shall, if a claim in respect thereof is to be made against the Borrower, notify the Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify the Borrower shall not relieve it from any indemnification liability which it may have under this Section 8.5 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the Borrower shall not relieve it from any liability which it may have to an Indemnified Party otherwise than under this Section 8.5. If any such claim or action shall be brought against an Indemnified Party, and it shall notify the Borrower thereof, the Borrower shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Borrower to the Indemnified Party of its election to assume the defense of such claim or action, the Borrower shall not be liable to the Indemnified Party under this Section 8.5 for any legal or other protection provided expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, the Borrower shall have the right to employ separate counsel in any Indemnitee pursuant such action and to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) survive payment the employment of such counsel has been specifically authorized by the Borrower in full of the Obligationswriting, or (ii) survive such Indemnified Party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the release Borrower and in the reasonable judgment of all such counsel it is advisable for such Indemnified Party to employ separate counsel or any portion of the Collateral and (iii) inure the Borrower has failed to assume the defense of such action and employ counsel reasonably satisfactory to the benefit Indemnified Party, in which case, if such Indemnified Party notifies the Borrower in writing that it elects to employ separate counsel at the expense of the Borrower, the Borrower shall not, in connection with any Person that was one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel) at any time for all such Indemnified Parties, which firm shall be designated in writing by the Lender. The Borrower shall not (i) without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an Indemnitee under this Agreement unconditional release of each Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any other Credit Documentsettlement of any such action effected without its written consent, but if settled with the consent of the Borrower or if there be a final judgment of the plaintiff in any such action, the Borrower agrees to indemnify and hold harmless any Indemnified Party from and against any loss or liability by reason of such settlement or judgment.
Appears in 1 contract
Samples: Loan Agreement (Cynet Inc)
Payment of Expenses and Taxes; Indemnification. Without duplication for any amounts paid under Section 2.10 or Section 5.04, each Borrower agrees, within thirty (30) days after receipt of written demand therefor (or immediately upon demand during the continuance of an Event of Default of the type set forth in Section 11.01(a)(i) or Section 11.01(h)), (a) Borrower agrees to pay (i) or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all reasonable documented out-of-pocket expenses incurred by fees, disbursements and other charges of counsel (limited to one lead counsel for the Issuing Lenders Agents and, if necessary, one local counsel in connection with the issuancerelevant jurisdiction, amendmentand, renewal or extension in the case of any Letter actual or perceived conflict of Credit interest, one conflicts counsel to all Indemnified Parties, taken as a whole) to the Agents, (b) to pay or any demand reimburse each Lender and the Agents for payment thereunder all their reasonable and (iii) all reasonable documented out-of-pocket costs and expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of other Credit issued or drawn hereunderDocuments and any such other documents, including all such the reasonable and documented out-of-pocket expenses incurred during any workoutfees, restructuring or negotiations disbursements and other charges of counsel to the Lenders and of counsel to the Agents (which shall be limited to one lead counsel and, if necessary, one local counsel in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree the relevant jurisdiction to indemnify the Lenders, as a group, and to the Agents, the Issuing Lender and each Lenderas another group), and each of their Affiliates(c) to pay, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold harmless each Indemnitee harmless from, Lender and the Agents from any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
, (cd) To to pay or reimburse Collateral Agent for all reasonable and documented out-of-pocket fees and expenses incurred in exercising its rights under Section 9.13, (e) to pay, indemnify and hold harmless the Administrative Agent, each Lender, the Letter of Credit Issuer and each Letter of Credit Participant from and against any and all actual liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented out-of-pocket fees, disbursements and other charges of counsel, which such Person may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit, other than as a result of, as determined in a final non-appealable judgment of a court of competent jurisdiction, the gross negligence, fraud, bad faith or willful misconduct of such Person (or its Related Party) or such Person’s (or its Related Party’s) material breach of the terms of this Agreement to the extent that such breach was not in response to or due to the material breach of this Agreement by any Credit Party, or (ii) the failure of the Letter of Credit Issuer to honor a Drawing under any such Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, and (f) to pay, indemnify and hold harmless each Lender and the Agents, their transferees, and their respective Related Parties (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel, incurred by any Indemnified Party or asserted against any Indemnified Party by a third party or by any Borrower, any other Credit Party or any of their respective Affiliates, whether or not a party hereto, arising out of, in connection with, as a result of or with respect to the enforcement, preservation or protection of its rights under, this Agreement (and the execution, delivery, performance and administration of this Agreement, the other Credit Documents and any such other documents solely with respect to the Agents), the other Credit Documents and any such other documents, including all such costs and expenses incurred during any workout, restructuring or negotiations in respect of the Obligations and any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of each Credit Party, any of their respective Subsidiaries or any of their Real Property (all the foregoing in this clause (f), collectively, the “indemnified liabilities”); provided, that the Credit Parties shall have no obligation hereunder to the applicable Indemnified Party with respect to indemnified liabilities to the extent determined in a final non-appealable judgment of a court of competent jurisdiction to have arisen from (i) the bad faith, fraud, gross negligence or willful misconduct of such Indemnified Party or any of such Indemnified Party’s subsidiaries or the respective officers, directors, employees or controlling persons of such Indemnified Party or any of such Indemnified Party’s subsidiaries, (ii) a material breach by such Indemnified Party of its obligations under any Credit Document which is not made in response to or due to a material breach by a Credit Party fails to pay under any amount Credit Document or (iii) disputes among the Indemnified Parties for actions by one or more of the Agents which is outside of the scope of any such Agent’s capacity as an Agent hereunder and that does not involve any act or omission by Holdings, the Borrowers or their respective Affiliates; provided, further, that the Borrowers shall not be required to be paid by them reimburse the legal fees and expenses of more than two outside counsels (in addition to an special counsel and up to one local counsel in each applicable local jurisdiction) for all Persons indemnified hereunder unless, in the reasonable opinion of the Administrative Agent or the reasonable opinion of its counsel, representation of all such indemnified Persons by such counsels would be inappropriate due to the existence of an Issuing Lender under paragraph (a) actual or (b) potential conflict of interest. The agreements in this Section 13.05 shall survive repayment of the Loans and all other amounts payable hereunder and termination of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as suchAgreement. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemniteeof the Indemnified Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . To the fullest extent permitted by Applicable Law, no Indemnified Party shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agentassert, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and againstIndemnified Party hereby waives, any and all claims for brokerage commissions, fees and other compensation made claim against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries the Credit Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with the transactions contemplated by with, or as a result of, this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or , any other Credit Document shall (i) survive payment in full or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the Obligationsproceeds thereof. No Credit Party shall be liable for any settlement (or expenses related thereto) effected without the Administrative Borrower’s consent (which consent shall not be unreasonably withheld, (ii) survive conditioned or delayed), but if settled with the release Administrative Borrower’s written consent, or if there is a final judgment, by a court of all or competent jurisdiction, for the plaintiff against an Indemnified Party in any portion proceeding related to such liabilities, the Borrowers agree to indemnify and hold harmless each Indemnified Party to the extent and in the manner set forth above. None of the Collateral and (iii) inure to Indemnified Parties shall be liable for any damages arising from the benefit use by unintended recipients of any Person that was at any time an Indemnitee under information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or any the other Credit DocumentDocuments or the transactions contemplated hereby or thereby. Except as indicated otherwise with respect to Other Taxes, this Section 13.05 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. The Grantors shall, jointly and severally, pay such compensation to the Collateral Trustee as the Issuers and Collateral Trustee may agree in writing from time to time. Notwithstanding that the Collateral Trustee is appointed by and acting for and at the direction of the Secured Parties, the Grantors jointly and severally agree (a) Borrower agrees to pay (i) or reimburse the Collateral Trustee for all its reasonable and documented fees and reasonable and documented out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Notes Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, charges and documented fees and disbursements of counsel for (limited to one counsel to the Agents Secured Parties, taken as a whole and, if necessary, one local counsel in connection with each appropriate jurisdiction (and solely in the syndication case of an actual or potential conflict of interest, one additional counsel to all affected parties, taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to such persons, taken as a whole) and of one counsel to the Collateral Trustee) and agents, appointed pursuant to Section 5.2, to the Collateral Trustee, any amounts due and owing pursuant to any Mortgage, and the preservation of the credit facilities provided for herein, the preparation and administration Liens or any rights of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Collateral Trustee, (iib) after the occurrence of a Triggering Event, to pay or reimburse the Collateral Trustee and the other Junior Lien Representatives for all reasonable out-of-pocket their documented costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender other Security Documents and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expensesother documents, including the reasonable fees, charges documented fees and disbursements of any counsel to the Collateral Trustee and the other Junior Lien Representatives (limited to one counsel to the Secured Parties, taken as a whole and, if necessary, one local counsel in each appropriate jurisdiction (and environmental consultants solely in the case of an actual or professionals) for any Indemniteepotential conflict of interest, incurred by or asserted against any Indemnitee arising out ofone additional counsel to all affected parties, in connection with, or taken as a result whole and, if necessary, of (ione local counsel in any relevant jurisdiction to such persons, taken as a whole) the execution or delivery and of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties one counsel to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of CreditCollateral Trustee), (iii) any actual or alleged presence or release of Hazardous Materials onto pay, atindemnify, under or defend and hold harmless the Collateral Trustee and the other Junior Lien Representatives from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Security Documents and any such other documents.
, and (c) To to pay, indemnify, defend and hold harmless the extent that Collateral Trustee and the other Junior Lien Representatives and their respective directors, officers, employees, trustees and agents from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel (limited to one counsel to the Secured Parties, taken as a Credit Party fails whole and, if necessary, one local counsel in each appropriate jurisdiction (and solely in the case of an actual or potential conflict of interest, one additional counsel to pay all affected parties, taken as a whole and, if necessary, of one local counsel in any amount required relevant jurisdiction to be paid by them such persons, taken as a whole) and of one counsel to an Agent or an Issuing Lender under paragraph (athe Collateral Trustee) or (b) and agents appointed pursuant to Section 5.2, with respect to the execution, delivery, enforcement, performance and administration of this subsection 11.5Agreement, each Lender severally agrees to pay to the other Security Documents and any such Agent or each Revolving Credit Lender agrees to pay such Issuing Lenderother documents, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as including any of the time that foregoing relating to the applicable unreimbursed expense violation of, noncompliance with or indemnity payment is sought) of such unpaid amountliability under, any environmental law (all the foregoing in this clause (c), collectively, the “indemnified liabilities”); provided that the unreimbursed expense Grantors shall have no obligation hereunder to the Collateral Trustee or any other Junior Lien Representative nor any of their respective directors, officers, employees, trustees and agents with respect to indemnified lossliabilities arising from the bad faith, claim, damage, liability gross negligence or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share willful misconduct of the sum party to be indemnified (in each case as determined by a final non-appealable order by a court of competent jurisdiction). The agreements in Section 5 and this Section 7.8 shall survive repayment of the aggregate amount Junior Lien Obligations and all other amounts payable hereunder and under the other Junior Lien Documents and the termination of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement the removal or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion resignation of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentTrustee.
Appears in 1 contract
Samples: Second Lien Collateral Trust Agreement (CSI Compressco LP)
Payment of Expenses and Taxes; Indemnification. The Borrower ---------------------------------------------- agrees
(a) Borrower agrees to pay (i) or reimburse the Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the Notes and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including including, without limitation, the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Agent, (iib) to pay or reimburse each Lender and the Agent for all reasonable out-of-pocket its costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the AgentsAgreement, the Issuing Lender Notes, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel to the Agent and to each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”c) againstto pay, and indemnify and hold harmless each Indemnitee harmless Lender and the Agent from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the Notes, the other Loan Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assertto pay, and indemnify and hold harmless each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, Lender and the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders Agent and each Issuer forof their respective parents, subsidiaries and hold the Administrative Agentaffiliates (and including each of their respective officers, the Lenders directors, employees and each Issuing Lender harmless agents) from and against, any and all claims for brokerage commissionsother claims, fees and other compensation made against the Administrative Agentdemands, the Lenders and the Issuing Lenders for any brokerliabilities, finder obligations, losses, damages, penalties, actions, judgments, suits, costs, settlements, expenses or consultant disbursements of whatever kind or nature arising from, in connection with or with respect to any agreementthe execution, arrangement or understanding made by or on behalf delivery, enforcement, performance and administration of Borrower this Agreement, the Notes, the other Loan Documents, the AF Acquisition Documents or any other documents or the use of Borrower’s Subsidiaries the proceeds of the Loans in connection with the transactions contemplated by this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) AF Acquisition or any other Credit Document purpose (all the foregoing in this clause (d), collectively, the "indemnified liabilities"); provided that the Borrower shall (i) survive payment in full -------- not have any obligation hereunder to the Agent or any Lender with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the Obligations, (ii) Agent or such Lender. The agreements in this Section 9.5 shall survive the release of all or any portion ----------- repayment of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit DocumentObligations hereunder.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. Each of the Credit Parties agrees (a) Borrower agrees to pay (i) or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including together with the reasonable fees, charges fees and disbursements of counsel for to the Agents in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Administrative Agent, (iib) to pay or reimburse each Lender and the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights under this Agreement and the other Credit Documents (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Credit Documents), including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent and to each Lender, (c) all costs and expenses of creating and perfecting Liens in favor of Administrative Agent on behalf of Lender Parties pursuant to any Security Document, including their rights under this subsection 11.5filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, and reasonable fees, expenses and disbursements of counsel to Administrative Agent and of counsel providing any opinions that Administrative Agent or Required Lenders may request in respect of the Security Documents or the Liens created pursuant thereto, (d) all costs and expenses incurred by Administrative Agent in connection with the Loans made, custody or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties preservation of any of the foregoing Persons Collateral, (each such Person being called an “Indemnitee”e) againstall costs and expenses, including reasonable attorneys’ fees and fees, costs and expenses of accountants, advisors and consultants, incurred by Administrative Agent and its counsel relating to efforts to protect, evaluate, assess or dispose of any of the Collateral, (f) on demand, to pay, indemnify, and hold the Administrative Agent and each Indemnitee Lender harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any the Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives(g) to pay, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer forindemnify, and hold the Administrative Agent, the Lenders each Lender and each Issuing Lender their respective Affiliates harmless from and against, any and all claims for brokerage commissionsother liabilities, fees obligations, losses, damages, penalties, actions, judgments, suits, reasonable costs, reasonable expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty), performance and administration of the Credit Documents and any such other compensation made against documents and the use, or proposed use, of proceeds of the Loans (all of the foregoing, collectively, the “indemnified liabilities”); provided, however, that the Credit Parties shall not have any obligation hereunder to the Administrative Agent or any Lender or any Affiliate thereof with respect to indemnified liabilities to the extent arising from the gross negligence or willful misconduct of the Administrative Agent, any such Lender or any such Affiliate, as determined by a court of competent jurisdiction. Each Credit Party hereby waives, to the Lenders maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding relating to or arising out of any Credit Document any special, exemplary or punitive or consequential damages. The agreements in this Section 9.5 shall survive repayment of the Loans and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this AgreementObligations.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. Each Borrower and each other Loan Party agrees: (a) Borrower agrees to pay (i) or reimburse the Agents for all their reasonable out-of-pocket and documented costs, fees and expenses incurred by each in connection with the development, negotiation, preparation, execution, delivery and administration of, and any amendment, supplement, or other modification to, and any waiver of any provision of, and any consent under, this Loan Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including without limitation such costs, fees and expenses related to due diligence, lien searches and filing fees and such costs, fees and expenses in relation to any payoff letter or other termination agreement and associated lien releases, and including the reasonable fees, disbursements and other charges and disbursements of counsel for to the Agents and tax professionals, accounting professionals, and other consultants and advisors, in connection with all cases whether or not the syndication of the credit facilities provided for herein, the preparation Closing Date occurs and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated are consummated; (b) [reserved]; (c) to pay or any such amendmentreimburse the Agents and each Lender for all of their costs, modification or waiver becomes effective), (ii) all reasonable out-of-pocket fees and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their any rights under this Loan Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out ofthereof, in connection withwith any action to protect, collect, sell, liquidate or as a result of (i) the execution or delivery dispose of any Credit Document or any other agreement or instrument contemplated herebyCollateral, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented and in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation arbitration or other contest, dispute, suit, or proceeding relating to any of the foregoing, whether based on contractincluding in each case the fees, tort or any disbursements and other theory and regardless charges of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available counsel to the extent that such lossesAgents, claimscounsel to each Lender, damagesand tax professionals, liabilities or related expenses are determined by a court accounting professionals, and other consultants and advisors of competent jurisdiction by final the Agents and nonappealable judgment of each Lender; (d) to have resulted pay, indemnify, and hold harmless the Agents and each Lender from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Loan Agreement, the other Loan Documents and any such other documents.
; (ce) to pay or reimburse the Agents and the Lenders for all reasonable fees, costs and expenses incurred in exercising their rights under Section 8.02 and Section 8.16 and to pay and reimburse Piney Lake for all reasonable fees and expenses incurred in exercising its rights under Section 8.17; and (f) to pay, indemnify and hold harmless the Agents, each Lender, each other Secured Party, and the respective Related Parties of each of them, from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable and documented costs, expenses and disbursements of any kind or nature whatsoever, including reasonable and documented fees, disbursements and other charges of counsel, with respect to the negotiation, execution, delivery, enforcement, performance and administration of this Loan Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to any Environmental Claim that relates to any Loan Party or any property owned or leased by any Loan Party, the violation of, noncompliance with or liability under, any Environmental Law by any Loan Party or any property owned or leased by any Loan Party or any actual or alleged presence of Hazardous Materials on any property owned or leased by any Loan Party or resulting from any Loan Party in connection with the operations of each Loan Party, any of its Subsidiaries or any of their Real Property (all the foregoing in this clause (f), collectively, the “Indemnified Liabilities”); provided, however, that the Loan Parties shall have no obligation under this clause (f) to the Agents, any Lender, any other Secured Party, or any Related Parties of any of them, for Indemnified Liabilities arising from (A) the gross negligence or willful misconduct of the party to be indemnified, as determined by a final, non-appealable order of a court of competent jurisdiction or (B) any Claim resulting from one party to be indemnified against any other party to be indemnified and that does not involve an act or omission of the Borrowers, any Guarantor or any of their respective Affiliates. To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the fullest extent permitted by applicable lawApplicable Law, no Credit Loan Party shall assert, and each Credit Loan Party hereby waives, any claim against any IndemniteeAgent, any Lender, any other Secured Party, and the Related Parties of each of them, on any theory of liability, for any general or consequential damages, or direct or indirect damages, in each case of any kind, and in each case whether special, indirectreliance, consequential punitive, compensatory, benefit of the bargain, “cover”, expectancy, exemplary, incidental, “lost profits”, or punitive similar or other damages (as opposed to direct including, but not limited to, damages resulting from loss of profits, revenue or business opportunity, business impact or anticipated savings) or multiples of damages, other than direct, foreseeable, actual out-of-pocket damages) , arising out of, in connection with, or as a result of, this Agreement Loan Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactionstransactions contemplated hereby or thereby, any Loan, Letter of Credit Term Loan or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 . No Lender, no Agent, no other Secured Party, and no Related Party of any of them shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders liable for any brokerdamages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, finder electronic or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower or any of Borrower’s Subsidiaries other information transmission systems in connection with this Loan Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, in the absence of the willful misconduct or gross negligence of such Person as determined by a final, non-appealable order of a court of competent jurisdiction. The agreements in this Section 12.05 shall survive the termination of the Commitments, the repayment, satisfaction or discharge of the Term Loans and all other amounts payable under the Loan Documents, and the termination of this Loan Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
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Payment of Expenses and Taxes; Indemnification. The Borrowers, jointly and severally, agree (a) Borrower agrees to pay (i) or reimburse the Lender for all its reasonable out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication preparation, execution and delivery of, and any amendment, supplement, waiver or modification to, this Agreement, the Note, the other Loan Documents and any documents prepared in connection herewith or therewith (other than at the request of the credit facilities provided for hereinLender), and the preparation and administration consummation of the Credit Documents transactions and to pay or any amendments, modifications or waivers reimburse the Lender for all of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective), (ii) all its reasonable out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection of their any rights contemplated hereby and by the Note, the other Loan Documents and any documents prepared in connection with the Credit Documentstherewith, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agentspay, the Issuing Lender and each Lenderindemnify, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of to hold the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee Lender harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all reasonable liabilities with respect to, or resulting from any delay by the Borrowers in paying, stamp, excise and other similar taxes (other than withholding taxes)taxes payable by withholding, if any, if legal, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the Note, and any such the other documents.
Loan Documents, and (c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5pay, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer forindemnify, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, against any and all claims for brokerage commissionsother reasonable liabilities, fees and other compensation made against the Administrative Agentobligations, the Lenders and the Issuing Lenders for losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any broker, finder kind or consultant nature whatsoever with respect to any agreementthe execution, arrangement or understanding made by or on behalf delivery, enforcement, performance and administration of Borrower or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
, the Note and the other Loan Documents (gall of the foregoing, collectively, the “indemnified liabilities”); provided, that, the Borrowers shall have no obligation hereunder with respect to indemnified liabilities to the extent such indemnified liabilities arise from the gross negligence or willful misconduct of the Lender. A Person seeking to be indemnified under this Section 10.04 shall notify the Borrowers of any event requiring indemnification within ten (10) Business Days following such Person’s receipt of notice of commencement of any action or proceeding, or such Person’s obtaining knowledge of the occurrence of any other event, giving rise to a claim for indemnification hereunder; provided, that, failure to deliver such notice shall not impair or limit the indemnification obligations of the Borrowers except to the extent of actual prejudice. The Credit Parties agree that Borrowers will be entitled (but not obligated) to assume the defense or settlement of any indemnification such action or other protection provided proceeding or to participate in any Indemnitee pursuant negotiations to this Agreement settle or otherwise resolve any claim using counsel of their choice reasonably acceptable to the Person to be indemnified. If the Borrowers elect to assume the defense or settlement of any such action or proceeding, the Person to be indemnified (including pursuant and its counsel) may continue to participate at its own expense in such action or proceeding. The agreements in this subsection 11.5) or any other Credit Document shall (i) survive payment in full repayment of the Obligations, Note and all other amounts payable hereunder for one (ii1) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Documentyear.
Appears in 1 contract
Samples: Subordinated Loan Agreement (TRC Companies Inc /De/)
Payment of Expenses and Taxes; Indemnification. Parent and the Borrower agree, jointly and severally, (a) Borrower agrees to pay (i) or reimburse the Administrative Agent and the Arranger for all their reasonable and documented out-of-pocket costs and expenses incurred by each of the Agents and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agents in connection with the syndication of the credit facilities provided for hereinsyndication, the preparation and administration of execution of, and any amendment, supplement or modification to, this Agreement and the Credit other Loan Documents and any other documents prepared in connection herewith or any amendmentstherewith, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated consummated, and the administration of the transactions contemplated hereby and thereby, including the reasonable and documented fees and disbursements of a single counsel (and appropriate local and special counsel) to the Administrative Agent and Arranger and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Restatement Effective Date (in the case of amounts to be paid on the Restatement Effective Date or, if the Restatement Effective Date does not occur, such other date as the Administrative Agent shall deem appropriate) and from time to time thereafter on a quarterly basis or any such amendmentother periodic basis as the Administrative Agent shall deem appropriate; (b) to pay or reimburse the Administrative Agent, modification or waiver becomes effective), (ii) the Lenders and the Issuing Lenders for all their respective reasonable and documented out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing Lender or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Agents, the Issuing Lender or any Lender, in connection with the enforcement or protection preservation of their rights in connection with the Credit Documents, including their any rights under this subsection 11.5Agreement, or in connection with the Loans made, or Letters of Credit issued or drawn hereunderother Loan Documents and any such other documents, including all the fees and disbursements of one law firm for the Administrative Agent, the Lenders and the Issuing Lenders, except where such out-of-pocket expenses incurred during relate to any workoutlitigation or any other formal proceeding commenced by the Administrative Agent, restructuring the Lenders or negotiations the Issuing Lenders in respect which the Administrative Agent, the Lenders and the Issuing Lenders are not the prevailing party; provided that (i) absent an actual or perceived conflict of such Loans or Letters of Credit.
interest, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (b) The Credit Parties agree and (ii) if an actual or perceived conflict of interest shall exist, Borrower and Parent shall not be required to indemnify the Agentspay for more than one counsel (and appropriate local and special counsel)) under this clause (b) for all similarly situated Lenders; (c) to pay, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold each Indemnitee Lender, the Issuing Lenders and the Administrative Agent harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxesbut excluding any taxes or increased costs otherwise not subject to the gross-up provided for by Section 2.16(a)), if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document this Agreement, the other Loan Documents and any such other documents.
, and (cd) to pay, indemnify, and hold each Lender, the Issuing Lenders, the Administrative Agent and the Arranger and their respective officers, directors, employees, trustees, Affiliates, agents, advisors and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law and the reasonable fees and expenses of legal counsel or consultants in connection therewith (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided, that (i) Parent and the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or wilful misconduct of such Indemnitee; (ii) absent an actual or perceived conflict of interest, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (d) for all Indemnitees and (iii) if an actual or perceived conflict of interest shall exist, Borrower and Parent shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (d) for all similarly situated Indemnitees. Without limiting the foregoing, and to the extent permitted by applicable law, Parent and the Borrower agree not to assert and to cause their respective Subsidiaries not to assert, and hereby waive and agree to cause their respective Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, Parent and the Borrower agree not to assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. All amounts due under this Section 10.5 shall be payable not later than thirty (30) days after written demand therefor. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of this Agreement and the repayment of the Loans and all other amounts payable hereunder. To the extent that a Credit Party fails Parent and the Borrower fail to pay any amount required to be paid by them to an the Administrative Agent or an any Issuing Lender under paragraph (a) or (b) of this subsection 11.5Section 10.5, each Lender severally agrees to pay to such the Administrative Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share Percentage Interest (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such the Administrative Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” This Section 10.5 shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant not apply with respect to Taxes other than any agreementTaxes that represent losses, arrangement or understanding made by or on behalf of Borrower or claims, damages, etc. arising from any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreementnon-Tax claim.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. Other than with respect to Excluded Taxes, the Borrower agrees, within ten (10) days after initial written presentment or demand therefor (or immediately upon demand during the continuance of an Event of Default of the type set forth in Section 10.01(a) or Section 10.01(h)), (a) Borrower agrees to pay or reimburse the Agents for all their reasonable and documented (ito the extent available) all reasonable out-of-pocket costs and expenses incurred by each in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Agents transactions contemplated hereby and their respective Affiliatesthereby, including the reasonable fees, disbursements and other charges and disbursements of counsel (limited to one lead counsel for the Agents Agents, and if necessary, one local counsel in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)each material relevant jurisdiction, (iib) to pay or reimburse each Lender and the Agents for all their reasonable and documented (to the extent available) out-of-pocket costs and expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one lead counsel (selected by the Administrative Agent) for the Agents and disbursements the Lenders, collectively, and if necessary, one local counsel (selected by the Administrative Agent) in each material relevant jurisdiction, plus, in the case of any one or more actual or potential conflicts of interest, one or more additional counsel for the Agentseach class of similarly situated Persons, the Issuing Lender or any Lender(c) to pay, in connection with the enforcement or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of any of the foregoing Persons (each such Person being called an “Indemnitee”) againstindemnify, and hold harmless each Indemnitee harmless from, Lender and the Agents from any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (and environmental consultants or professionals) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lenders to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned, leased or otherwise operated by Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, breach of this Agreement or other Credit Documents or willful misconduct of such Indemnitees or (v) any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes)Other Taxes, if any, which that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any this Agreement, the other Credit Document Documents and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent or such Issuing Lender in its capacity as such. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the time.
(d) to pay or reimburse Collateral Agent for all reasonable fees and expenses incurred in exercising its rights under Section 8.14, and (e) to pay, indemnify and hold harmless each Lender and the Agents, their transferees, and their respective Related Parties (collectively, the “Indemnified Parties”) from and against any and all other from and against any and all other claims, liabilities, obligations, losses, damages, penalties, actions, litigation, judgments, suits, of any kind or nature whatsoever, whether based on contract, tort or any other theory, whether brought by a third party or by Topco, the Borrower or any of their Subsidiaries, and regardless of whether any Indemnified Party is a party thereto, including payment of reasonable and documented (to the extent available) out-of-pocket costs, expenses or disbursements, including reasonable and documented (to the extent available) fees, disbursements and other charges of counsel (limited to one lead counsel (selected by the Administrative Agent) for the Agents and the Lenders, and if necessary, one local counsel (selected by the Administrative Agent) in each material relevant jurisdiction, and, in the case of any actual or perceived conflict of interest, one conflicts counsel for each class of similarly situated Indemnified parties), with respect to the enforcement, preservation or protection of its rights under, this Agreement (and the execution, delivery, performance and administration of this Agreement, the other Credit Documents and any such other documents solely with respect to the Agents), the other Credit Documents and any such other documents, including all such costs and expenses incurred during any workout, restructuring or negotiations in respect of the Obligations and any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged presence of Hazardous Materials applicable to the operations of each Credit Party, any of their respective Subsidiaries or any of their Real Property (all the foregoing in this clause (e), collectively, the “indemnified liabilities”); provided, that the Credit Parties shall have no obligation hereunder to the applicable Indemnified Party with respect to indemnified liabilities to the extent determined in a final judgment of a court of competent jurisdiction to have arisen from (i) the bad faith, gross negligence or willful misconduct of such Indemnified Party, (ii) a material breach by such Indemnified Party of its funding obligations under any Credit Document or (iii) disputes among the Indemnified Parties for actions by one or more of the Indemnified Parties which is outside of the scope of any such Indemnified Party’s capacity as an Indemnified Party hereunder and that does not involve any act or omission by Topco, the Borrower or its Affiliates. The agreements in this Section 12.05 shall survive repayment of the Loans and all other amounts payable hereunder and termination of this Agreement. To the fullest extent permitted by applicable lawApplicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemniteeof the Indemnified Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the Transactions, transactions contemplated hereby or thereby or any Loan, Letter of Credit Loan or the use of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant . Except with respect to matters involving fraud on the party of any agreementCredit Party, arrangement or understanding made to the fullest extent permitted by or on behalf of Borrower or Applicable Law, no Indemnified Party shall assert, and each Indemnified Party hereby waives, any claim against any of Borrower’s Subsidiaries the Credit Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with the transactions contemplated by with, or as a result of, this Agreement.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or , any other Credit Document shall (i) survive payment in full or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby or any Loan or the use of the Obligations, (ii) survive the release of all or any portion proceeds thereof. None of the Collateral and (iii) inure to Indemnified Parties shall be liable for any damages arising from the benefit use by unintended recipients of any Person that was at any time an Indemnitee under information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or any the other Credit DocumentDocuments or the transactions contemplated hereby or thereby.
Appears in 1 contract
Payment of Expenses and Taxes; Indemnification. (a) The Borrower agrees to pay (i) to pay or reimburse each of the Agents, each Joint Lead Arranger, each Joint Bookrunner and the Syndication Agent for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by each (without duplication) associated with the syndication of the Agents Credit Facilities and their respective Affiliatesincurred in connection with the development, preparation, execution and delivery of, and any amendment, supplement and/or modification to this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees, disbursements and other charges and disbursements of Xxxxxxxx & Sterling LLP as counsel for to the Agents with statements with respect to the foregoing to be submitted to the Borrower prior to the Effective Date (in connection the case of amounts to be paid on the Effective Date and from time to time thereafter on a quarterly basis) and one counsel in each relevant local jurisdiction approved by, or otherwise retained with the syndication of the credit facilities provided for hereinconsent of, the preparation and administration of the Credit Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated or any such amendment, modification or waiver becomes effective)Borrower, (ii) to pay or reimburse the Collateral Agent, the Administrative Agent and each Lender for all their reasonable and documented and invoiced out-of-pocket costs and reasonable expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal enforcement or extension preservation of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agentsrights under this Agreement, the Issuing Lender or other Credit Documents and any Lendersuch other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative Agent and the Collateral Agent and, to the extent required, one firm or local counsel in each relevant local jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed (which may include a single special counsel acting in multiple jurisdictions), and (iii) to pay, indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, each Joint Lead Arranger, the Joint Bookrunners, the Syndication Agent, each Letter of Credit Issuer and their respective Related Parties (without duplication) (the “Indemnified Parties”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or disbursements of any counsel for the Agentskind or nature whatsoever (including, the Issuing Lender but not limited to, any action, claim, litigation, investigation, inquiry or any Lenderother proceeding), in connection with the enforcement including, taken as a whole, reasonable and documented or protection of their rights in connection with the Credit Documents, including their rights under this subsection 11.5, or in connection with the Loans made, or Letters of Credit issued or drawn hereunder, including all such invoiced out-of-pocket expenses incurred during fees, reasonable expenses, disbursements and other charges of one firm of counsel for all Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of any workout, restructuring or negotiations in respect existence of such Loans conflict and in connection with the investigating or Letters of Credit.
(b) The Credit Parties agree to indemnify the Agents, the Issuing Lender and each Lender, and each of their Affiliates, officers, directors, employees, agents, trustees, advisors and controlled parties of defending any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees) has retained its own counsel, charges of another firm of counsel for such affected Indemnified Party), and disbursements to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) of any counsel such Indemnified Party arising out of or relating to any action, claim, litigation, investigation or other proceeding (and environmental consultants including any inquiry or professionalsinvestigation of the foregoing) for (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any Indemniteeother third person), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Credit Document or any other agreement or instrument contemplated hereby, the performance by the parties with respect to the Credit Documents of their respective obligations thereunder or the consummation of the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and any such other transactions contemplated hereby, (ii) any Loan or Letter of Credit documents or the use of the proceeds therefrom (of the Loans or Letters of Credit, including any refusal by an Issuing Lenders of the foregoing relating to honor a demand for payment under a Letter of Credit if the documents presented in connection violation of, noncompliance with such demand do not strictly comply with the terms of such Letter of Credit)or liability under, (iii) any Environmental Law or any actual or alleged presence of or release Release of Hazardous Materials onapplicable to the Borrower, at, under or from any Mortgaged Property of its Subsidiaries or any other property currently of the Real Property (all the foregoing in this clause (iii), collectively, the “indemnified 180 LPL – Conformed A&R Credit Agreement liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Party with respect to indemnified liabilities arising from (i) the gross negligence, bad faith or formerly owned, leased or otherwise operated by Borrower willful misconduct of such Indemnified Party or any of its Subsidiaries, or any liability under Environmental Laws related Related Parties as determined in any way to Borrower or any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory a final and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, nonappealable judgment as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from jurisdiction, (ii) a material breach of the bad faith, gross negligence, breach obligations of such Indemnified Party or any of its Related Parties under the terms of this Agreement by such Indemnified Party or any of its Related Parties as determined in a final and non-appealable judgment as determined by a court of competent jurisdiction, (iii) in addition to clause (ii) above, in the case of any action, claim, litigation, investigation, inquiry or other Credit Documents or willful misconduct proceeding initiated by the Borrower against the relevant Indemnified Party, solely from a breach of the obligations of such Indemnitees Indemnified Party or its Related Parties under the terms of this Agreement as determined in a final and non-appealable judgment by a court of competent jurisdiction, or (viv) any proceeding between and all recording and filing fees and any and all liabilities with respect to, among Indemnified Parties that does not involve an act or resulting from any delay in paying, stamp, excise and other similar taxes (other than withholding taxes), if any, which may be payable or determined to be payable in connection with omission by the execution and delivery of, or consummation of any direct parent of the transactions contemplated byBorrower, the Borrower or any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Credit Document and any such other documents.
(c) To the extent that a Credit Party fails to pay any amount required to be paid by them to an Agent or an Issuing Lender under paragraph (a) or (b) of this subsection 11.5, each Lender severally agrees to pay to such Agent or each Revolving Credit Lender agrees to pay such Issuing Lender, as the case may be, such Lender’s or Revolving Credit Lender’s, as the case may be, pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amountits Restricted Subsidiaries; provided that the unreimbursed expense or indemnified lossAdministrative Agent, claimthe Collateral Agent, damagethe Letter of Credit Issuers, liability or related expensethe Swingline Lenders, as the case may beJoint Lead Arrangers, was incurred by or asserted against such the Joint Bookrunners and the Syndication Agent or such Issuing Lender to the extent acting in its their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in clause (i), (ii), (iii) or (iv) of the immediately preceding proviso applies to such person at such time. For purposes hereof, a Lender’s or Revolving Credit Lender’s “pro rata share” All amounts payable under this Section 13.5(a) shall be determined based upon its share paid within 10 Business Days after receipt by the Borrower of an invoice relating thereto setting forth such expense in reasonable detail. The agreements in this Section 13.5 shall survive repayment of the sum of the aggregate amount of the total Loans and Revolving Credit Commitments or Revolving Credit Loans and Revolving Credit Commitments, as the case may be, at the timeall other amounts payable hereunder.
x. Xx Credit Party nor any Indemnified Party shall have any liability for any punitive, indirect or consequential damages resulting from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (dwhether before or after the Effective Date); provided that, nothing in this Section 13.5(b) To shall limit any Credit Party’s indemnity obligations to the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Indemnitee, on any theory of liability, for such special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, are included in any third party claim in connection withwith which an Indemnified Party is entitled to indemnification thereunder. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or as a result of, other information transmission systems in connection with this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of other Credit Documents or the use transactions contemplated hereby or thereby, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of the proceeds thereof.
(e) All amounts due under this subsection 11.5 shall be payable promptly after written demand therefor.
(f) The Credit Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of Borrower Indemnified Party or any of Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreementits Related Parties.
(g) The Credit Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this subsection 11.5) or any other Credit Document shall (i) survive payment in full of the Obligations, (ii) survive the release of all or any portion of the Collateral and (iii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
Appears in 1 contract
Samples: Amendment to Credit Agreement (LPL Financial Holdings Inc.)
