Costs, Expenses and Indemnification. (a) The Company agrees to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on demand all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank for the costs of the appointment by such Bank of a Confirming Bank. (b) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, whether or not such investigation, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby. (c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment administration of this Agreement and the other documents to be delivered hereunder, including including, without limitation, the reasonable fees and out-of-pocket expenses disbursements of one counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunderunder this Agreement. The Company Borrower further agrees to pay on demand all reasonable out-of-pocket costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks)any, incurred by the Administrative Agent, any Issuing Bank Agent or any Bank Lender in connection with the any waiver, modification or enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable and the other documents to be delivered hereunder, including, without limitation, the fees, disbursements and other charges of counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank for the costs Administrative Agent, but limited to one counsel for the Lenders and the Administrative Agent taken as a whole and, in the case of the appointment by such Bank any actual or potential conflict of interest, one additional counsel to each group of affected parties similarly situated taken as a Confirming Bankwhole (and, if necessary, one local counsel in any relevant material jurisdiction).
(b) The Company hereby indemnifies Borrower agrees to indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint each Lead Arrangers and Joint Book ManagersArranger, each Bank, each Issuing Bank Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors advisors, partners, members and representatives (each, an “Indemnified Party”) from and against any and all actions, suits, losses, claims, damages, lossesliabilities, liabilities penalties, judgments, costs, expenses and expenses disbursements (including fees and disbursements of counsel, but limited to one counsel for the Indemnified Parties taken as a whole and, in the case of any actual or potential conflict of interest, one additional counsel to each group of affected Indemnified Parties similarly situated taken as a whole (and, if necessary, one local counsel in any relevant material jurisdiction)), of any kind or nature whatsoever, joint or several, that may be imposed on, incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to this Agreement and the other Loan Documents or any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the other Loan Documents, the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Loans or the Letters of Credit, whether or not such investigation, litigation or proceeding is brought by the CompanyBorrower, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V ARTICLE 3 are satisfied or the other transactions contemplated by this Agreement or the other Loan Documents are consummated, except to the extent such claim, damage, loss, liability or expense any of the foregoing results from (i) such Indemnified Party’s gross negligence or willful misconduct or its material breach in bad faith of its obligations under this Agreement or any other Loan Document, in each case as determined in a final and nonappealable judgment by a court of competent jurisdiction, or (ii) any dispute solely among Indemnified Parties other than (x) any claims against any Lead Arranger or the Administrative Agent in their capacities as such or in fulfilling their customary duties with respect thereto or any similar role under this Agreement or under any other Loan Document and (y) any claims arising out of any act or omission on the part of the Borrower or its Affiliates (as determined by a court of competent jurisdiction by a final and nonappealable judgment). The Company hereby further agrees that Notwithstanding anything herein to the contrary, no Indemnified Party shall have be entitled to any liability (whether direct or claim for indemnification under this Section 8.04(b) in respect of any taxes, which are subject to indemnification pursuant solely to Section 2.14 of this Agreement. Each party hereto agrees not to assert any claim against any other party hereto, on any theory of liability, for consequential, indirect, in contract, tort special or otherwise) to the Company for punitive damages arising out of or in connection with or otherwise relating to this Agreement Agreement, any other Loan Document, or any of the transactions contemplated hereby or thereby, except to thereby or the extent such liability is found in a final, non-appealable judgment by a court actual or proposed use of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence the proceeds of the Loans or willful misconduct; the Letters of Credit (provided that nothing this provision shall not limit the Borrower’s indemnification obligations set forth above, including, without limitation, as to any claims by an Indemnified Party in violation of this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damagessentence). 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 (including any Platform) in connection with this Agreement or the other Loan Documents or the transactions contemplated herebyhereby or thereby except those due to such Indemnified Party’s gross negligence, breach in bad faith of its obligations, or willful misconduct as determined in a final and nonappealable judgment by a court of competent jurisdiction.
(c) If (i) the Company makes any payment of principal of of, or Conversion or Continuation of, any Eurodollar Rate Advance on a day Loan is made other than on the last day of an Interest Period with respect theretofor such Loan as a result of any optional or mandatory prepayment, or (ii) acceleration of the Company fails to make a Borrowing or a prepayment of, or a continuation maturity of or a conversion into, Eurodollar Rate Advances after having given notice thereof the Loans pursuant to this AgreementSection 6.01 or for any other reason whatsoever, the Company Borrower shall reimburse each Bank upon demand pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, cost costs or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss expenses which it reasonably incurs as a result of margin, for the period after such payment, failure Continuation or Conversion and the liquidation or reemployment of deposits or other funds acquired by such Lender to borrow, failure to continue, failure to convert fund or failure to prepay, following its receipt of a maintain such Loan. A certificate of such Bank in reasonable detail as to the amount of such losslosses, cost or expensecosts and expenses, which certificate submitted to the Borrower and the Administrative Agent by such Lender, shall be conclusive and binding on the Company in the absence of for all purposes, absent manifest error.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Each Borrower agrees to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification execution and amendment enforcement of this Agreement the Loan Documents and the Security Documents to which it is a party or any other documents to be delivered by it hereunder, including including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent Lender with respect hereto thereto and with respect to advising the Administrative Agent Lender as to its rights and responsibilities hereunderunder this Agreement. The Company further Each Borrower agrees to pay on demand all losses, costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banksexpenses), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the preservation of any rights of Lender under, or the enforcement (whether through negotiationsof, or legal proceedings advice in respect of, the rights or otherwise) responsibilities of Lender under this Agreement including reasonable counsel fees with respect to Borrower, that Borrower’s Note, the Security Documents to which such Borrower is a party, and any other documents delivered hereunder including, without limitation, losses, costs and expenses in connection with the enforcement (other than taxes, fees, duties and assessments for which Borrower is not responsible under Section 2.11 hereof) sustained by Lender as a result of rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank for the costs of the appointment failure by such Bank of a Confirming Bank.
(b) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated Borrower to perform or observe its obligations contained herein or in such Borrower’s Note or any other document related thereto. Each Borrower further agrees to indemnify and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) hold harmless Lender from and against any and all claims, damages, losses, liabilities liabilities, costs and expenses (including fees resulting from, related to or connected with this Agreement, the Borrower’s Note, the Security Documents to which it is a party and disbursements of counsel), joint any document or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or instrument delivered in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement herewith or the transactions contemplated hereby or thereby, whether or not such investigation, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Each Borrower agrees to pay and reimburse on demand (i) all reasonable costs and expenses of the Administrative Agent Agent, the Issuing Banks and the Lenders in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement the Basic Documents including, without limitation, (A) all due diligence, syndication (including printing, distribution and the other documents to be delivered hereunderbank meetings), including the reasonable transportation, computer, duplication, appraisal, insurance, consultant, search, filing and recording fees and expenses, ongoing audit expenses and all other reasonable out-of-pocket expenses incurred by the Administrative Agent (including the reasonable and documented fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to Citibank, but not, under this clause (A) or clause (B) below, of any other counsel) whether or not any of the transactions contemplated by this Agreement are consummated, (B) the reasonable and documented fees and expenses of counsel for the Administrative Agent with respect hereto and thereto, with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees responsibilities, or the perfection, protection or preservation of rights or interests, under the Basic Documents, and (C) with respect to pay on demand negotiations with any Obligor or with other creditors of any Obligor or any of its Subsidiaries arising out of any Default or Event of Default or any events or circumstances that may reasonably be expected to give rise to a Default or Event of Default and with respect to presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors' rights generally and any proceeding ancillary thereto) and (ii) all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any the Issuing Bank or any Bank in connection with Banks and the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel fees and expenses Lenders in connection with the enforcement of the Basic Documents, whether in any action, suit or litigation, any bankruptcy, insolvency or other similar proceeding affecting creditors' rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank generally or otherwise (including, without limitation, the reasonable and documented fees and expenses of counsel for the costs of the appointment by such Bank of a Confirming Bank.
(b) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each Lender with respect thereto).
(b) Each Borrower agrees to indemnify and hold harmless the Administrative Agent, each Issuing Bank and each Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, agents and advisors and representatives (each, an “"Indemnified Party”") from and against any and all claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and disbursements expenses of counsel), joint or several, ) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of of, related to or in connection with or relating to this Agreement the Covered Transactions or the transactions contemplated hereby actual or therebyalleged presence of Hazardous Materials on any property owned by an Obligor or any Environmental Action relating in any way to any Obligor or any of its Subsidiaries, in each case whether or not such investigation, litigation or proceeding is brought by the Companyany Obligor, any of its directors, shareholders or creditors, creditors or an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, thereto and whether or not any of the conditions precedent set forth in Article V are satisfied Covered Transactions or the other transactions contemplated by this Agreement hereby are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s 's gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed . Each Borrower also agrees not to constitute a waiver of assert any claim against the Company may haveAdministrative Agent, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Issuing Bank, any Issuing Bank nor the Administrative Agent shall in Lender, any event be liable of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for any special, indirect, consequential or punitive damages. No Indemnified Party shall be liable for any damages arising from out of or otherwise relating to the use by unintended recipients of Covered Transactions or any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement part thereof or the other transactions contemplated herebyherein or in any other Basic Document or the actual or proposed use of the proceeds of the Advances. For purposes of this Section 9.04(b), the term "non-appealable" includes any judgment as to which all appeals have been taken or as to which the time for taking an appeal shall have expired.
(c) If (i) the Company makes any payment of principal of of, or Conversion of, any Eurodollar Rate Advance on is made by a day Borrower to or for the account of a relevant Lender other than on the last day of an the Interest Period with respect theretofor such Advance, as a result of a payment or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof Conversion pursuant to this AgreementSection 2.03, 2.05, 2.08(b)(i) or 2.09(d) or as the Company shall reimburse each Bank result of acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, such Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such BankAdvance.
(d) If any Obligor fails to pay when due any costs, including expenses or other amounts payable by it under any loss incurred in obtainingLoan Document, liquidating or employing deposits from third partiesincluding, but excluding loss without limitation, reasonable and documented fees and expenses of margincounsel and indemnities, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate amount may be paid on behalf of such Bank Obligor by the Administrative Agent or any Lender, in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest errorits sole discretion.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Whether or not the transactions contemplated hereby shall be consummated, each Borrower agrees to pay promptly (i) all the actual and reimburse on demand all reasonable costs and expenses of the Administrative Agent preparation of the Facility Documents and all other documents, agreements and instruments required by, or entered into in connection therewith, and any consents, amendments, waivers or other modifications thereto, and of each Borrower’s performance of and compliance with the preparation, execution, delivery, administration, modification all agreements and amendment of conditions on its part to be performed or complied with under this Agreement and the other documents to be delivered hereunder, Facility Documents including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto and with respect to advising confirming compliance with environmental, insurance and solvency requirements, (ii) the Administrative Agent as fees, expenses and disbursements of counsel to its rights the Lender in connection with the negotiation, preparation and responsibilities hereunder. The Company further agrees execution of the Facility Documents, (iii) all the actual costs and reasonable expenses of creating and perfecting Liens in favor of the Lender pursuant to pay any Security Document and all other documents, agreements and instruments required by, or entered into in connection therewith, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums, and fees, expenses and disbursements of counsel to the Lender and of counsel providing any opinions required by the terms of the Facility Documents, (iv) the custody or preservation of any of the Collateral or the Lien created under any Security Document, including any and all periodic field examinations and appraisals of trademarks and inventory conducted by or on demand behalf of the Lender, and (v) both before and after the occurrence of an Event of Default, all costs and expenses, if any (including reasonable counsel attorneys’ fees and expenses costs of the Administrative Agent and each of the Banks)settlement, incurred by the Administrative AgentLender in enforcing any Obligations of or in collecting any payments due from any Borrower hereunder or under the other Facility Documents, any Issuing Bank or any Bank including, but not limited to such costs and expenses incurred by reason of an Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement (whether through negotiations, legal proceedings of any guarantee) or otherwise) of this Agreement including reasonable counsel fees and expenses in connection with any refinancing or restructuring of the enforcement of rights credit arrangements provided under this Section 10.04(a). The Company shall not be responsible Agreement in the nature of a “work-out” or pursuant to reimburse any Bank for the costs insolvency or bankruptcy proceedings of the appointment by such Bank of a Confirming BankBorrower.
(b) The Company Each Borrower, jointly and severally, hereby indemnifies agrees to indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank Lender and each of their respective its Affiliates and their respective officers, directors, employees, agents, agents and advisors and representatives (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including including, without limitation, fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or any other Facility Document, or the transactions contemplated hereby or thereby, or any consent (or lack of consent) rendered by the Indemnified Party in connection with Collateral (including, without limitation, substitution or reallocation), or any use made or proposed to be made with the proceeds of the Loan, whether or not such investigation, litigation or proceeding is brought by the Companyany Borrower, any of its their respective shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.in
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company agrees to Each Borrower shall pay and reimburse on demand (i) all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses incurred by the Administrative Agent and the Agent-Related Persons, including reasonable fees, expenses and disbursements of one law firm, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent with respect hereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on demand all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank Lender, in connection with the enforcement (whether through negotiationsor protection of its rights in connection with this Agreement, legal proceedings including its rights under this Section, or otherwise) of this Agreement including reasonable counsel fees and expenses in connection with the enforcement Loans made or Letters of rights under this Section 10.04(a). The Company shall not be responsible to reimburse Credit issued hereunder, including all such out-of-pocket expenses incurred during any Bank for the costs workout, restructuring or negotiations in respect of the appointment by such Bank of a Confirming BankLoans or L/C Obligations.
(b) The Company hereby indemnifies Each Borrower shall indemnify the Administrative Agent, Citigroup Global Markets Inc.each Lender, M▇▇▇▇▇▇ Lynchthe Fronting L/C Issuer, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managersthe Several L/C Agent, each BankLimited Fronting Lender and the directors, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives Affiliates of any of the foregoing Persons (each, each such Person being called an “Indemnified PartyIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all losses, claims, damages, lossesliabilities, liabilities penalties and related expenses (including fees including, without limitation, the reasonable fees, charges and disbursements of one counsel for the Indemnitees, unless the Indemnitees have conflicting interests that cannot reasonably be represented by one counsel), joint or severalin which case such expenses shall include the reasonable fees, that may be charges and disbursements of no more than such number of counsels as are necessary to represent such conflicting interests) incurred by any Indemnitee or asserted or awarded against any Indemnified PartyIndemnitee arising out of, in each case arising out connection with, or as a result of (i) the execution or in connection with delivery of this Agreement, any other Loan Document or relating to any investigation, litigation agreement or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions instrument contemplated hereby or thereby, whether or the performance by the parties hereto of their respective obligations hereunder or thereunder, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Fronting L/C Issuer, Several L/C Agent or any Limited Fronting 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 investigationLetter of Credit), litigation or (iii) any actual or prospective claim, litigation, investigation or proceeding is brought by the Company, relating to any of its shareholders or creditorsthe foregoing, an Indemnified Party whether based on contract, tort or any other Persontheory, or an Indemnified Party and regardless of whether any Indemnitee is otherwise a party theretothereto (collectively, and whether or not the “Indemnified Liabilities”); provided that such indemnity shall not, as to any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummatedIndemnitee, except be available to the extent that such claimlosses, damageclaims, lossdamages, liability liabilities, penalties or expense results from such Indemnified Party’s gross negligence or willful misconduct as related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall judgment to have any liability resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, (whether direct or indirect, in contract, tort or otherwisey) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from a breach in bad faith by an Indemnitee in any material respect of such Indemnified PartyIndemnitee’s gross negligence obligations hereunder or willful misconductunder any other Loan Document, or (z) result from any action, suit, proceeding or claim solely among Indemnitees brought by any Indemnitee against any other Indemnitee (other than such other Indemnitee acting in its capacity as Administrative Agent, Fronting L/C Issue, Several L/C Agent and/or Limited Fronting Lender to the extent otherwise entitled to be indemnified hereunder) that does not involve an act or omission (or alleged act or omission) by the Borrowers or any of the Borrowers’ affiliates.
(c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the Administrative Agent under paragraph (a) or (b) of this Section 10.05, each Lender severally agrees to pay to the Administrative Agent such Lender’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 nothing the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, in this paragraph its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall be deemed to constitute a waiver of not assert, and each Borrower hereby waives, any claim the Company may haveagainst any Indemnitee, or to exculpate on any Person from any liability that such Person may have to the Companytheory of liability, for breach by such Person of its obligations under this Agreement. Neither any Bankspecial, any Issuing Bank nor the Administrative Agent shall in any event be liable for any 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, any Letter of Credit or the use of the proceeds thereof.
(e) No Indemnified Party Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunicationsIntraLinks, electronic Syndtrak or other similar information transmission systems in connection with this Agreement or the transactions contemplated herebyAgreement.
(cf) If (i) The agreements in this Section shall survive the Company makes any payment resignation of principal the Administrative Agent, the replacement of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this AgreementLender, the Company shall reimburse each Bank upon demand for any resulting losstermination of the Aggregate Commitments and the repayment, cost satisfaction or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss discharge of margin, for all the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest errorother Obligations.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand (whether or not the transactions contemplated by this Agreement are consummated)
(i) all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, syndication, modification and amendment of this Agreement and the other documents to be delivered hereunderLoan Documents, including the including, without limitation, (A) all reasonable fees and out-of-pocket due diligence, transportation, computer, printing, bank meeting, duplication, appraisal, audit, search, filing and recording fees and expenses and, with the prior approval of the Borrower, insurance and consultant fees, and (B) the reasonable fees and expenses of counsel for the Administrative Agent with respect hereto and with respect to advising the Administrative Agent as to its their rights and responsibilities hereunder. The Company further agrees responsibilities, or the perfection, protection or preservation of rights, or interests, under the Loan Documents, with respect to pay on demand negotiations with the Borrower or the Guarantor or with other creditors of the Borrower or the Guarantor or any of their respective Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting, claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors' rights generally and any proceeding ancillary thereto and (ii) all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel fees and expenses Lenders in connection with the enforcement of the Loan Documents, whether in any action, suit or litigation, any bankruptcy, insolvency or other similar proceeding affecting creditors' rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank generally or otherwise (including, without limitation, the reasonable fees and expenses of counsel for the costs of the appointment by such Bank of a Confirming BankAdministrative Agent and each Lender with respect thereto).
(b) The Company hereby indemnifies Borrower and the Guarantor agree to indemnify and hold harmless the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated Agent and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, agents and advisors and representatives (each, an “"Indemnified Party”") from and against any and all claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and disbursements expenses of counsel), joint or several, counsel and settlement costs) that may be are actually incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of of, related to or in connection with (i) the Borrower's use of the proceeds of any Advance, (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower, the Guarantor or any of their respective Subsidiaries or any Environmental Action relating in any way to this Agreement the Borrower, the Guarantor or any of their respective Subsidiaries or (iii) the transactions contemplated hereby Facility or therebyLoan Documents or any Indemnified Person's role in connection therewith, in each case whether or not such investigation, litigation or proceeding is brought by the Company, Borrower or any of its Subsidiaries, directors, shareholders or creditors, creditors or an Indemnified Party Party, whether or not any other Person, or an Indemnified Party is otherwise a party thereto, thereto and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement hereby are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s 's gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company Borrower fails to make a Borrowing pay when due any costs, expenses or a prepayment ofother amounts payable by it under any Loan Document, including, without limitation, fees and expenses of counsel (including the allocated cost of in-house counsel) and indemnities, such amount may be paid on behalf of the Borrower by the Administrative Agent or a continuation of or a conversion intoany Lender, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreementin its sole discretion, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by and such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on reimbursed by the Company in the absence of manifest errorBorrower.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company agrees to pay and reimburse on demand all reasonable provisions regarding costs and expenses and indemnification Obligations contained in Section 10.04 of this Agreement shall apply in all respects to any transactions involving any Existing New YorkQualified Note, any Existing New YorkQualified Mortgage, any New YorkQualified Term Note or any New YorkQualified Mortgage and all actions taken or omitted to be taken by the Administrative Agent and the Lender PartiesLenders in connection therewith. Neither the Administrative Agent nor any of the Lender PartiesLenders shall be responsible for any losses, costs or expenses incurred by the Borrower or any of its Affiliates in connection with the preparationloss of any recording tax credits or savings pertaining to any Existing New YorkQualified Mortgage or any New YorkQualified Mortgage. Further, executionwithout limitation of any other indemnification obligations of the Borrower pursuant to the Loan Documents, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on demand all costs and expenses, if any (including reasonable counsel fees and expenses of Borrower will expressly indemnifyhereby indemnifies the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank for the costs of the appointment by such Bank of a Confirming Bank.
(b) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) Lender PartiesLenders from and against any and all claims, damages, losses, liabilities costs and expenses (including fees and disbursements reasonable legal fees) they may incur as a result of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, whether or not such investigation, litigation or proceeding is brought failure by the Company, Borrower or any of its shareholders Affiliates to pay any recording or creditors, an Indemnified Party other documentary taxes associated with any Existing New YorkQualified Mortgage or any other Person, New YorkQualified Mortgage.
(d) Borrower as Co-Obligor or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentGuarantor. The Company Borrower hereby further agrees acknowledges that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph it shall be deemed to constitute be a waiver co-obligor in respect of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment ofeach New York Term Note, or a continuation guarantor in respect of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, each Florida Term Note. The liability of the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, Borrower for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate obligations evidenced by each New YorkQualified Term Note shall be conclusive absolute and binding on the Company in the absence of manifest error.unconditional irrespective of:
Appears in 1 contract
Costs, Expenses and Indemnification. (aA) The Company Borrower agrees to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification delivery and amendment enforcement of this Agreement and the any other documents to be delivered hereunder, including (other than travel costs of the Lender) including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent Lender (excluding any internal allocated charges of the Lender's in-house counsel) with respect hereto thereto and with respect to advising the Administrative Agent Lender as to its respective rights and responsibilities hereunderunder this Agreement and the other Loan Documents. The Company further Borrower also agrees to pay on demand all losses, costs and expenses, if any (including reasonable counsel fees and expenses except for any internal allocated charge of the Administrative Agent and each of the BanksLender's in-house counsel), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the preservation of, or the enforcement (whether through negotiationsof, or legal proceedings advice in respect of, the rights or otherwise) responsibilities of the Lender under this Agreement including reasonable counsel fees or the Loan Documents, including, without limitation, losses, costs and Liquidation Expenses sustained by the Lender as a result of any failure by the Borrower to perform or observe its obligations contained herein or in any other Loan Document. The Borrower further agrees to indemnify and hold harmless the Lender from and against any and all damages, losses, liabilities, costs and expenses in connection resulting from, relating to or connected with this Agreement, the enforcement of rights under this Section 10.04(a). The Company shall not be responsible Loans or the other Loan Documents or the transactions contemplated hereby, except to reimburse any Bank for the costs extent resulting from the gross negligence or willful misconduct of the appointment by such Bank of a Confirming BankLender.
(bB) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated Borrower further agrees to indemnify and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) hold harmless Lender from and against any and all claims, losses, damages, lossesresponse costs, liabilities clean-up costs and expenses (including fees and disbursements of counsel), joint or several, that may be suffered and/or incurred at any time by or asserted or awarded against any Indemnified Party, in each case Lender arising out of or in connection with or any way relating to conditions existing on or activities taking place at any time on the Property of the Borrower, including but not limited to any Hazardous Materials (as defined herein) in, on, under, at, generated at or from or used in the construction and/or renovation of, the Property, and/or the failure or Borrower to perform its obligations and covenants hereunder with respect to environmental matters, including, but not limited to: (i) claims of any persons for costs, damages, penalties, contribution, response costs, clean-up costs, injunctive or other relief, (ii) costs of investigation, litigation removal, remediation and restoration, including reasonable fees of attorneys, consultants and experts, and costs of reporting the existence of Hazardous Materials to any governmental body and (iii) any expenses or proceeding obligations, including attorneys' fees, incurred at, before and after any trial or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, appeal therefrom whether or not such investigationtaxable as costs, litigation including, without limitation, witness fees, deposition costs, copying and telephone charges and other expenses. All costs covered by this indemnification shall be paid by Borrower to Lender when incurred by Lender. If Lender shall take possession of any property owned or proceeding is brought operated by Borrower and if a matter for which Lender might otherwise be entitled to indemnification by Borrower hereunder shall have begun, occurred or arisen prior to the Companytime at which Lender takes possession and shall be unremediated, any of its shareholders incompletely remediated or creditorscontinuing then Lender's possession shall not affect Borrower's duty and obligation to indemnify Lender hereunder, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party theretoexcept, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except then only to the extent such extent, that Lender's acts or omissions after the time at which it takes possession increases any claim, loss, damage, lossresponse cost, liability or clean-up and/or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability which indemnification is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated herebysought.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company agrees to Each Borrower shall pay and reimburse on demand (i) all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses incurred by the Administrative Agent and the Agent-Related Persons, including reasonable fees, expenses and disbursements of one law firm, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent with respect hereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on demand all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank Lender, in connection with the enforcement (whether through negotiationsor protection of its rights in connection with this Agreement, legal proceedings including its rights under this Section, or otherwise) of this Agreement including reasonable counsel fees and expenses in connection with the enforcement Loans made or Letters of rights under this Section 10.04(a). The Company shall not be responsible to reimburse Credit issued hereunder, including all such out-of-pocket expenses incurred during any Bank for the costs workout, restructuring or negotiations in respect of the appointment by such Bank of a Confirming BankLoans or L/C Obligations.
(b) The Company hereby indemnifies Each Borrower shall indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managerseach Lender, each BankFronting L/C Issuer, the Several L/C Agent, each Issuing Bank Limited Fronting Lender and each of their respective Affiliates and their respective the directors, officers, directors, employees, agents, advisors and representatives Affiliates of any of the foregoing Persons (each, each such Person being called an “Indemnified PartyIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all losses, claims, damages, lossesliabilities, liabilities penalties and related expenses (including fees including, without limitation, the reasonable fees, charges and disbursements of one counsel for the Indemnitees, unless the Indemnitees have conflicting interests that cannot reasonably be represented by one counsel), joint or severalin which case such expenses shall include the reasonable fees, that may be charges and disbursements of no more than such number of counsels as are necessary to represent such conflicting interests) incurred by any Indemnitee or asserted or awarded against any Indemnified PartyIndemnitee arising out of, in each case arising out connection with, or as a result of (i) the execution or in connection with delivery of this Agreement, any other Loan Document or relating to any investigation, litigation agreement or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions instrument contemplated hereby or thereby, whether or the performance by the parties hereto of their respective obligations hereunder or thereunder, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Fronting L/C Issuer, Several L/C Agent or any Limited Fronting 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 investigationLetter of Credit), litigation or (iii) any actual or prospective claim, litigation, investigation or proceeding is brought by the Company, relating to any of its shareholders or creditorsthe foregoing, an Indemnified Party whether based on contract, tort or any other Persontheory, or an Indemnified Party and regardless of whether any Indemnitee is otherwise a party theretothereto (collectively, and whether or not the “Indemnified Liabilities”); provided that such indemnity shall not, as to any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummatedIndemnitee, except be available to the extent that such claimlosses, damageclaims, lossdamages, liability liabilities, penalties or expense results from such Indemnified Party’s gross negligence or willful misconduct as related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall judgment to have any liability resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, (whether direct or indirect, in contract, tort or otherwisey) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from a breach in bad faith by an Indemnitee in any material respect of such Indemnified PartyIndemnitee’s gross negligence obligations hereunder or willful misconductunder any other Loan Document, or (z) result from any action, suit, proceeding or claim solely among Indemnitees brought by any Indemnitee against any other Indemnitee (other than such other Indemnitee acting in its capacity as Administrative Agent, Fronting L/C Issuer, Several L/C Agent and/or Limited Fronting Lender to the extent otherwise entitled to be indemnified hereunder) that does not involve an act or omission (or alleged act or omission) by the Borrowers or any of the Borrowers’ affiliates.
(c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the Administrative Agent under paragraph (a) or (b) of this Section 10.05, each Lender severally agrees to pay to the Administrative Agent such Lender’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 nothing the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, in this paragraph its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall be deemed to constitute a waiver of not assert, and each Borrower hereby waives, any claim the Company may haveagainst any Indemnitee, or to exculpate on any Person from any liability that such Person may have to the Companytheory of liability, for breach by such Person of its obligations under this Agreement. Neither any Bankspecial, any Issuing Bank nor the Administrative Agent shall in any event be liable for any 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, any Letter of Credit or the use of the proceeds thereof.
(e) No Indemnified Party Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunicationsIntraLinks, electronic Syndtrak, ClearPar or other similar information transmission systems in connection with this Agreement or the transactions contemplated herebyAgreement.
(cf) If (i) The agreements in this Section shall survive the Company makes any payment resignation of principal the Administrative Agent, the replacement of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this AgreementLender, the Company shall reimburse each Bank upon demand for any resulting losstermination of the Aggregate Commitments and the repayment, cost satisfaction or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss discharge of margin, for all the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest errorother Obligations.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand (i) all reasonable costs and expenses of the Administrative Agent and each Arranger in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel, but limited to the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on under this Agreement, (ii) all costs and expenses incurred by any Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all costs and expenses, if any (including the reasonable counsel and documented fees and out-of-pocket expenses of one counsel to the Administrative Agent Agent, each Issuing Lender and each of the BanksLenders taken as a whole, and, if reasonably necessary, a single specialty or local counsel to the Administrative Agent, each Issuing Lender and each of the Lenders taken as a whole; provided that in the case of an actual or perceived conflict of interest with respect to any of the foregoing counsel, one additional counsel to all affected Lenders similarly situated and taken as a whole), incurred by the Administrative Agent, any Issuing Bank Lender or any Bank Lender in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a10.4(a). The Company Such reasonable fees and out-of-pocket expenses shall not be responsible reimbursed by the Borrower upon presentation to reimburse any Bank for the costs of the appointment by such Bank Borrower of a Confirming Bankstatement of account, regardless of whether this Agreement is executed and delivered by the parties hereto or the transactions contemplated by this Agreement are consummated.
(b) The Company Borrower hereby indemnifies agrees to indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each BankArranger, each Issuing Bank Lender, each Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all direct claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Loans or the Letters of Credit (including any refusal by an Issuing 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), whether or not such investigation, litigation or proceeding is brought by the CompanyBorrower, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. direct
(c) The Company Borrower hereby further agrees that (i) no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company Borrower for or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Loans, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of misconduct and (ii) the Borrower will not assert any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor against the Administrative Agent shall in or any event be liable Lender, any of their respective Affiliates, or any of their respective directors, officers, employees, attorneys or agents, on any theory of liability, for any consequential, indirect, consequential special or punitive damages. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients out of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with relating to this Agreement or the transactions contemplated herebyactual or proposed use of any Loans.
(cd) If The Borrower hereby indemnifies each of the Lenders against any loss, cost or expense (including any loss, cost or expense arising from the liquidation or reemployment of funds or from any fees payable) which may arise, be attributable to or result due to or as a consequence of (i) any failure by the Company makes Borrower to make any payment of principal when due of any Eurodollar Rate Advance amount due hereunder in connection with a SOFR Loan, (ii) any failure of the Borrower to borrow or continue a SOFR Loan or convert to a SOFR Loan on a day date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation, (iii) any failure of the Borrower to prepay any SOFR Loan on a date specified therefor in any Notice of Prepayment, (iv) any payment, prepayment or conversion of any SOFR Loan on a date other than the last day of an the Interest Period with respect thereto, therefor (including as a result of an Event of Default) or (iiv) the Company fails to make assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a Borrowing or result of a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof request by the Borrower pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a Section 4.12(b). A certificate of such Bank in reasonable detail as Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the amount of such loss, cost or expense, which certificate Borrower through the Administrative Agent and shall be conclusive and binding on the Company in the absence of conclusively presumed to be correct save for manifest error.
(e) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), any Issuing Lender, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Lender, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time, or if the Total Credit Exposure has been reduced to zero, then based on such Lender’s share of the Total Credit Exposure immediately prior to such reduction) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this clause (e) are subject to the provisions of Section 4.7.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Each Borrower agrees to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification execution and amendment enforcement of this Agreement the Loan Documents and the Security Documents to which it is a party or any other documents to be delivered by it hereunder, including including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent Lender with respect hereto thereto and with respect to advising the Administrative Agent Lender as to its rights and responsibilities hereunderunder this Agreement. The Company further Each Borrower agrees to pay on demand all losses, costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banksexpenses), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the preservation of any rights of Lender under, or the enforcement (whether through negotiationsof, or legal proceedings advice in respect of, the rights or otherwise) responsibilities of Lender under this Agreement including reasonable counsel fees with respect to Borrower, that Borrower's Note, the Security Documents to which such Borrower is a party, and any other documents delivered hereunder including, without limitation, losses, costs and expenses in connection with the enforcement (other than taxes, fees, duties and assessments for which Borrower is not responsible under Section 2.11 hereof) sustained by Lender as a result of rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank for the costs of the appointment failure by such Bank of a Confirming Bank.
(b) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated Borrower to perform or observe its obligations contained herein or in such Borrower's Note or any other document related thereto. Each Borrower further agrees to indemnify and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) hold harmless Lender from and against any and all claims, damages, losses, liabilities liabilities, costs and expenses (including fees resulting from, related to or connected with this Agreement, the Borrower's Note, the Security Documents to which it is a party and disbursements of counsel), joint any document or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or instrument delivered in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement herewith or the transactions contemplated hereby or thereby, whether or not such investigation, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company agrees to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on demand all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank for the costs of the appointment by such Bank of a Confirming Bank.
(b) The Company hereby indemnifies the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, whether or not such investigation, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Costs, Expenses and Indemnification. (a) The Company agrees Borrower agrees, to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent and each Credit Support Provider in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement Agreement, the other Transaction Documents and the other documents to be delivered hereunderhereunder and thereunder, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent and each Credit Support Provider with respect hereto thereto and with respect to advising the Administrative Agent such agents as to its their respective rights and responsibilities hereunderunder this Agreement and such other Transaction Documents. The Company Subject to the provisions of the Subordination Agreement and Article IX hereof, the Borrower further agrees to pay on demand all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banksexpenses), incurred by of the Administrative Agent, any Issuing Bank or any Bank each Credit Support Provider and each Lender in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement Agreement, the other Transaction Documents and the other documents to be delivered hereunder and thereunder, including reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a). The Company shall SECTION 8.04 and all costs and expenses (including reasonable counsel fees and expenses) in connection with the negotiation of any restructuring or "work-out" (whether or not be responsible to reimburse any Bank for the costs consummated) of the appointment by such Bank obligations of a Confirming Bank.
(b) The Company hereby indemnifies the Administrative AgentBorrower hereunder or under any Transaction Document. Subject to the provisions of the Subordination Agreement and Article IX hereof, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, the Borrower further agrees to indemnify each Bank, each Issuing Bank Lender and each of their its respective Affiliates and their respective affiliates, control persons, officers, directors, employeesemployees and agents (each an "INDEMNIFIED PARTY"), agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including reasonable fees and disbursements of counsel), joint ) for which any of them may become liable or several, that which may be incurred by or asserted or awarded against any Indemnified Partyof them in connection with the investigation of, in each case preparation for or defense of any pending or threatened claim or any action or proceeding arising out of of, related to or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, described herein whether or not such investigation, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party the Borrower is otherwise a party thereto, and whether including any transaction in which any proceeds of any Borrowing are or are proposed to be applied; PROVIDED, HOWEVER, that the Borrower shall not be liable for any portion of the conditions precedent set forth in Article V are satisfied such claims, damages, losses, liabilities or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results expenses resulting from such an Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s 's gross negligence or willful misconduct; provided that nothing in . The provisions of this paragraph SECTION 8.04 shall be deemed to constitute a waiver survive the termination of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Sources: Credit Agreement (Americredit Corp)
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand all reasonable costs and expenses of the Administrative Agent and the Arranger in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunderunder this Agreement. The Company Borrower further agrees to pay on demand all costs and expenses, if any (including including, without limitation, reasonable counsel fees and expenses of the Administrative Agent and each of the BanksLenders), incurred by the Administrative Agent, any Issuing Bank Agent or any Bank Lender in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a8.04(a). The Company Such reasonable fees and out-of-pocket expenses shall not be responsible reimbursed by the Borrower upon presentation to reimburse any Bank for the costs of the appointment by such Bank Borrower of a Confirming Bankstatement of account, regardless of whether this Agreement is executed and delivered by the parties hereto or the transactions contemplated by this Agreement are consummated.
(b) The Company Borrower hereby indemnifies agrees to indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book ManagersBarney Inc., each Bank, each Issuing Bank Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all direct claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Advances, whether or not such investigation, litigation or proceeding is brought by the CompanyBorrower, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V 3 are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such direct claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s 's gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. 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 transactions contemplated hereby.
(c) If (i) the Company makes any payment of principal of any Eurodollar Rate Advance on a day other than the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreement, the Company shall reimburse each Bank upon demand for any resulting loss, cost or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as to the amount of such loss, cost or expense, which certificate shall be conclusive and binding on the Company in the absence of manifest error.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand (i) all reasonable costs and expenses of the Administrative Agent and each Arranger in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel, but limited to the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on under this Agreement, (ii) all costs and expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all costs and expenses, if any (including the reasonable counsel and documented fees and out-of-pocket expenses of (x) one counsel to the Administrative Agent Agent, each Issuing Bank and each of the BanksLenders taken as a whole, and, if reasonably necessary, a single specialty or local counsel to the Administrative Agent, each Issuing Bank and each of the Lenders taken as a whole; provided that in the case of an actual or perceived conflict of interest with respect to any of the foregoing counsel, one additional counsel to all affected Lenders similarly situated and taken as a whole), incurred by the Administrative Agent, any Issuing Bank or any Bank Lender in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a8.04(a). The Company Such reasonable fees and out-of-pocket expenses shall not be responsible reimbursed by the Borrower upon presentation to reimburse any Bank for the costs of the appointment by such Bank Borrower of a Confirming Bankstatement of account, regardless of whether this Agreement is executed and delivered by the parties hereto or the transactions contemplated by this Agreement are consummated.
(bi) The Company Borrower hereby indemnifies agrees to indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managerseach Arranger, each Issuing Bank, each Issuing Bank Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all direct claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Advances or the Letters of Credit (including any refusal by an Issuing 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), whether or not such investigation, litigation or proceeding is brought by the CompanyBorrower, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V 3 are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such direct claim, damage, loss, liability or expense results (x) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct misconduct, or (y) results from a claim brought by the Borrower against an Indemnified Party for breach in bad faith, or a material breach, of such Indemnified Party’s express obligations hereunder or (z) arises out of, or result from, any investigation, litigation or proceeding that does not involve an act or omission by the Borrower or any of the Borrower’s Affiliates and that is brought by an Indemnified Party against any other Indemnified Party (other than in its capacity as determined the Administrative Agent, an Issuing Bank, an Arranger, a Co-Syndication Agent, a Documentation Agent or any other similar role with respect to the credit facility evidenced by a court of competent jurisdiction by final and nonappealable judgment. this Agreement).
(ii) The Company Borrower hereby further agrees that (i) no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company Borrower for or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Advances, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute a waiver of misconduct and (ii) the Borrower will not assert any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor against the Administrative Agent shall in or any event be liable Lender, any of their respective Affiliates, or any of their respective directors, officers, employees, attorneys or agents, on any theory of liability, for any consequential, indirect, consequential special or punitive damages. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients out of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with relating to this Agreement or the transactions contemplated herebyactual or proposed use of any Advance.
(c) If (i) the Company makes any payment of principal of of, or Conversion or Continuation of, any Eurodollar Rate Advance of a Lender is made on a day other than the last day of an Interest Period with respect theretofor such Advance as a result of any optional or mandatory prepayment, or (ii) acceleration of the Company fails to make a Borrowing or a prepayment of, or a continuation maturity of or a conversion into, Eurodollar Rate the Advances after having given notice thereof pursuant to this AgreementSection 6.01 or for any other reason, the Company Borrower shall reimburse each Bank upon demand pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, cost costs or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding expenses (other than loss of margin, for the period after profit) which it may reasonably incur as a result of such payment, failure Continuation or Conversion and the liquidation or reemployment of deposits or other funds acquired by such Lender to borrow, failure to continue, failure to convert fund or failure to prepay, following its receipt of a maintain such Advance. A certificate of such Bank in reasonable detail as to the amount of such losslosses, cost or expensecosts and expenses, which certificate submitted to the Borrower and the Administrative Agent by such Lender, shall be conclusive and binding on the Company in the absence of for all purposes, absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/)
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand promptly (i) all reasonable and documented costs and expenses of the Administrative Agent in connection with the preparation, syndication, execution, delivery, administration, modification and amendment of this Agreement Agreement, the Revolving Credit Notes and the other documents to be delivered hereunder, including including, without limitation, the reasonable and documented fees and out-of-pocket expenses of one counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunderunder this Agreement and (ii) all reasonable and documented costs and expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder. The Company Borrower further agrees to pay on demand promptly all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any the Issuing Bank or any Bank Banks and the Lenders, if any, in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel Agreement, the Revolving Credit Notes and the other documents to be delivered hereunder, including, without limitation, fees and expenses of one counsel for the Agent, the Issuing Banks and the Lenders (including in connection with the enforcement of rights under this Section 10.04(a8.04(a)), unless the Agent, the Issuing Banks and/or the Lenders have conflicting interests that cannot reasonably be represented by one counsel, in which case such expenses shall include the reasonable fees and disbursements of no more than such number of counsels as are necessary to represent such conflicting interests). The Company All references in this clause (a) to fees and expenses shall not be responsible deemed to reimburse any Bank for the costs of the appointment by such Bank of a Confirming Bankrefer to invoiced and reasonably documented out-of-pocket fees and expenses.
(b) The Company hereby indemnifies Borrower agrees to indemnify and hold harmless the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each BankLender, each Issuing Bank and each Related Party of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives any of the foregoing Persons (each, an “Indemnified Party”) from and against any and all claims, damages, penalties, losses, liabilities and expenses (including limited in the case of legal fees and disbursements to the reasonable fees and disbursements of one counsel to the Indemnified Parties unless the Indemnified Parties have conflicting interests that cannot reasonably be represented by one counsel), joint or several, in which case such expenses shall include the reasonable fees and disbursements of no more than such number of counsels as are necessary to represent such conflicting interests) that may be incurred by or asserted or awarded against any Indemnified Party, Party in each case arising out of or in connection with or relating to by reason of any investigation, litigation or proceeding (or the preparation of any a defense in connection therewith) by a third party or by the Borrower with respect thereto arising out to the Revolving Credit Notes, this Agreement, the arrangement or syndication of or in connection with or relating to this Agreement or Agreement, any of the transactions contemplated hereby herein or therebythe actual or proposed use of the proceeds of the Revolving Credit Advances or Letters of Credit, whether or not such investigationbased on contract, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party tort or any other Persontheory, or an and regardless of whether any Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, penalty, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwisei) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from (A) such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute misconduct or the gross negligence or willful misconduct of such Indemnified Party’s controlled Affiliates or its or their officers, directors or employees or (B) a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for material breach by such Person Indemnified Party or its controlled Affiliates or officers, directors or employees of its express obligations under this AgreementAgreement or (ii) resulted from any actual or threatened claim, litigation, investigation or proceeding between or among the Indemnified Parties (other than any such claim, litigation, investigation or proceeding against the Agent or any Other Agent in its capacity as such and other than any such claim, litigation, investigation or proceeding arising from any act or omission by the Borrower or any of its Affiliates). Neither Each party hereto agrees not to assert any Bankclaim for special, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. No Indemnified damages against the Agent, any Lender, the Borrower, or any Related Party shall be liable for any damages arising from the use by unintended recipients of any information of the foregoing Persons, on any theory of liability, arising out of or other materials distributed by it through telecommunicationsotherwise relating to the Revolving Credit Notes, electronic or other information transmission systems in connection with this Agreement or Agreement, any of the transactions contemplated herebyherein or the actual or proposed use of the proceeds of the Revolving Credit Advances, provided that this sentence shall not relieve the Borrower from any of its obligations hereunder, including, without limitation any of its indemnification obligations set forth in this Agreement. All references in this clause (b) to fees and expenses shall be deemed to refer to invoiced and reasonably documented out-of-pocket fees and expenses. This Section 8.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, liabilities and related expenses arising from any non-Tax claim.
(c) If (i) the Company makes any payment of principal of, or Conversion of, any SOFR Advance is made by the Borrower to or for the account of any Eurodollar Rate Advance on a day Lender other than on the last day of an the Interest Period with respect theretofor such Revolving Credit Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Revolving Credit Notes pursuant to Section 6.01 or for any other reason, or (ii) by an Eligible Assignee to a Lender other than on the Company fails to make a Borrowing or a prepayment of, or a continuation last day of or a conversion into, Eurodollar Rate Advances after having given notice thereof the Interest Period for such Revolving Credit Advance upon an assignment of rights and obligations under this Agreement pursuant to this AgreementSection 8.07 as a result of a demand by the Borrower pursuant to Section 8.07(b), the Company shall reimburse each Bank Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (excluding loss of anticipated profits, indirect losses and special or consequential damages), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as Revolving Credit Advance.
(d) Without prejudice to the amount survival of such lossany other agreement of the Borrower hereunder, cost or expensethe agreements and obligations of the Borrower contained in Sections 2.11, which certificate 2.14 and 8.04 shall be conclusive survive the payment in full of principal, interest and binding on all other amounts payable hereunder and under the Company in the absence of manifest errorRevolving Credit Notes.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand (i) all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of the Loan Documents, including, without limitation, the reasonable and documented fees and expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel to the Administrative ▇▇▇▇▇, whether ▇▇ not any of the transactions contemplated by this Agreement are consummated, and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect hereto and Agent, with respect to advising the Administrative Agent as to its rights and responsibilities hereunder. The Company further agrees to pay on demand responsibilities, or the protection or preservation of rights or interests, under the Loan Documents, and (ii) all out-of-pocket costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any Issuing Bank or any Bank in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel fees and expenses Lenders in connection with the enforcement of the Loan Documents, whether in any action, suit or litigation, any bankruptcy, insolvency or other similar proceeding affecting creditors' rights under this Section 10.04(a). The Company shall not be responsible to reimburse any Bank generally or otherwise (including, without limitation, the reasonable fees and expenses of counsel for the costs of the appointment by such Bank of a Confirming BankAdministrative Agent and each Lender with respect thereto).
(b) The Company hereby indemnifies Borrower agrees to indemnify and hold harmless the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated Agent and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each Bank, each Issuing Bank Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and disbursements expenses of counsel), joint or several, ) that may be incurred by or asserted or awarded against any Indemnified PartyParty (other than a claim by a Lender against another Lender or the Administrative Agent or by the Administrative Agent against a Lender), in each case arising out of or in connection with or relating to the entering into and performance of the Loan Documents, the preparation for a defense of, any investigation, litigation or proceeding arising therefrom or any of the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the other transactions contemplated hereby or thereby, in each case whether or not such investigation, litigation or proceeding is brought by the CompanyBorrower, any of its directors, shareholders or creditors, creditors or an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross 's negligence or willful misconduct; provided . The Borrower also agrees that nothing in this paragraph the Administrative Agent, the Lenders, their Affiliates and their respective directors, officers, employees, attorneys, agents or representatives shall be deemed to constitute a waiver have no liability on any theory of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Companyliability, for breach by such Person of its obligations under this Agreement. Neither any Bankspecial, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients out of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or otherwise relating to the transactions contemplated herebyherein or in any other Loan Document or the actual or proposed use of the proceeds of the Advances.
(c) If (i) the Company makes for any reason any payment of principal of of, or Conversion of, any Eurodollar Rate Advance on is made by the Borrower to or for the account of a day Lender other than on the last day of an Interest Period with respect thereto, or (ii) the Company fails to make a Borrowing or a prepayment of, or a continuation of or a conversion into, Eurodollar Rate Advances after having given notice thereof pursuant to this Agreementfor such Advance, the Company shall reimburse each Bank Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, costs or expenses that it may incur as a result of such payment, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank, including any loss incurred in obtaining, liquidating Lender to fund or employing deposits from third parties, but excluding loss of margin, for the period after maintain such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a Advance. A certificate of such Bank Lender setting forth in reasonable detail as to the amount of to which such loss, cost or expense, which certificate Lender is then entitled under this clause (c) shall be conclusive and binding on the Company Borrower in the absence of manifest error.
(d) The Borrower agrees to pay to each Lender, so long as such Lender shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or the equivalent), additional interest on the unpaid principal amount of each Eurodollar Rate Advance, from the date of such Eurodollar Rate Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the then current Interest Period for such Eurodollar Rate Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% MINUS the Eurodollar Rate Reserve Percentage for such Interest Period, payable on each date on which interest is payable on such Eurodollar Rate Advance. A certificate of such Lender setting forth in reasonable detail the amount to which such Lender is then entitled under this clause (d) shall be conclusive and binding on the Borrower in the absence of manifest error.
(e) If the Borrower fails to pay when due any costs, expenses or other amounts payable by it under any Loan Document, including, without limitation, reasonable fees and expenses of counsel and indemnities, such amount may be paid on behalf of the Borrower by the Administrative Agent or any Lender, in its sole discretion.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand promptly (i) all reasonable and documented costs and expenses of the Administrative Agent in connection with the preparation, syndication, execution, delivery, administration, modification and amendment of this Agreement Agreement, the Revolving Credit Notes and the other documents to be delivered hereunder, including including, without limitation, the reasonable and documented fees and out-of-pocket expenses of one counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunderunder this Agreement and (ii) all reasonable and documented costs and expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder. The Company Borrower further agrees to pay on demand promptly all costs and expenses, if any (including reasonable counsel fees and expenses of the Administrative Agent and each of the Banks), incurred by the Administrative Agent, any the Issuing Bank or any Bank Banks and the Lenders, if any, in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including reasonable counsel Agreement, the Revolving Credit Notes and the other documents to be delivered hereunder, including, without limitation, fees and expenses of one counsel for the Agent, the Issuing Banks and the Lenders (including in connection with the enforcement of rights under this Section 10.04(a8.04(a)), unless the Agent, the Issuing Banks and/or the Lenders have conflicting interests that cannot reasonably be represented by one counsel, in which case such expenses shall include the reasonable fees and disbursements of no more than such number of counsels as are necessary to represent such conflicting interests). The Company All references in this clause (a) to fees and expenses shall not be responsible deemed to reimburse any Bank for the costs of the appointment by such Bank of a Confirming Bankrefer to invoiced and reasonably documented out-of-pocket fees and expenses.
(b) The Company hereby indemnifies Borrower agrees to indemnify and hold harmless the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book Managers, each BankLender, each Issuing Bank and each Related Party of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives any of the foregoing Persons (each, an “Indemnified Party”) from and against any and all claims, damages, penalties, losses, liabilities and expenses (including limited in the case of legal fees and disbursements to the reasonable fees and disbursements of one counsel to the Indemnified Parties unless the Indemnified Parties have conflicting interests that cannot reasonably be represented by one counsel), joint or several, in which case such expenses shall include the reasonable fees and disbursements of no more than such number of counsels as are necessary to represent such conflicting interests) that may be incurred by or asserted or awarded against any Indemnified Party, Party in each case arising out of or in connection with or relating to by reason of any investigation, litigation or proceeding (or the preparation of any a defense in connection therewith) by a third party or by the Borrower with respect thereto arising out to the Revolving Credit Notes, this Agreement, the arrangement or syndication of or in connection with or relating to this Agreement or Agreement, any of the transactions contemplated hereby herein or therebythe actual or proposed use of the proceeds of the Revolving Credit Advances or Letters of Credit, whether or not such investigationbased on contract, litigation or proceeding is brought by the Company, any of its shareholders or creditors, an Indemnified Party tort or any other Persontheory, or an and regardless of whether any Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such claim, damage, penalty, loss, liability or expense results from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Company hereby further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwisei) to the Company for or in connection with or relating to this Agreement or the transactions contemplated hereby or thereby, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from (A) such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed to constitute misconduct or the gross negligence or willful misconduct of such Indemnified Party’s controlled Affiliates or its or their officers, directors or employees or (B) a waiver of any claim the Company may have, or to exculpate any Person from any liability that such Person may have to the Company, for material breach by such Person Indemnified Party or its controlled Affiliates or officers, directors or employees of its express obligations under this AgreementAgreement or (ii) resulted from any actual or threatened claim, litigation, investigation or proceeding between or among the Indemnified Parties (other than any such claim, litigation, investigation or proceeding against the Agent or any Other Agent in its capacity as such and other than any such claim, litigation, investigation or proceeding arising from any act or omission by the Borrower or any of its Affiliates). Neither Each party hereto agrees not to assert any Bankclaim for special, any Issuing Bank nor the Administrative Agent shall in any event be liable for any indirect, consequential or punitive damages. No Indemnified damages against the Agent, any Lender, the Borrower, or any Related Party shall be liable for any damages arising from the use by unintended recipients of any information of the foregoing Persons, on any theory of liability, arising out of or other materials distributed by it through telecommunicationsotherwise relating to the Revolving Credit Notes, electronic or other information transmission systems in connection with this Agreement or Agreement, any of the transactions contemplated herebyherein or the actual or proposed use of the proceeds of the Revolving Credit Advances, provided that this sentence shall not relieve the Borrower from any of its obligations hereunder, including, without limitation any of its indemnification obligations set forth in this Agreement. All references in this clause (b) to fees and expenses shall be deemed to refer to invoiced and reasonably documented out-of-pocket fees and expenses. This Section 8.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, liabilities and related expenses arising from any non-Tax claim.
(c) If (i) the Company makes any payment of principal of of, or Conversion of, any Eurodollar Rate Advance on is made by the Borrower to or for the account of a day Lender other than on the last day of an the Interest Period with respect theretofor such Revolving Credit Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Revolving Credit Notes pursuant to Section 6.01 or for any other reason, or (ii) by an Eligible Assignee to a Lender other than on the Company fails to make a Borrowing or a prepayment of, or a continuation last day of or a conversion into, Eurodollar Rate Advances after having given notice thereof the Interest Period for such Revolving Credit Advance upon an assignment of rights and obligations under this Agreement pursuant to this AgreementSection 8.07 as a result of a demand by the Borrower pursuant to Section 8.07(b), the Company shall reimburse each Bank Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (excluding loss of anticipated profits, indirect losses and special or consequential damages), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin, for the period after such payment, failure to borrow, failure to continue, failure to convert or failure to prepay, following its receipt of a certificate of such Bank in reasonable detail as Revolving Credit Advance.
(d) Without prejudice to the amount survival of such lossany other agreement of the Borrower hereunder, cost or expensethe agreements and obligations of the Borrower contained in Sections 2.11, which certificate 2.14 and 8.04 shall be conclusive survive the payment in full of principal, interest and binding on all other amounts payable hereunder and under the Company in the absence of manifest errorRevolving Credit Notes.
Appears in 1 contract
Costs, Expenses and Indemnification. (a) The Company Borrower agrees to pay and reimburse on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent and the Arranger in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including including, without limitation, the reasonable fees and out-–of-–pocket expenses of counsel for the Administrative Agent with respect hereto thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunderunder this Agreement. The Company Borrower further agrees to pay on demand promptly all costs and expenses, if any (including including, without limitation, reasonable counsel fees and out-of-pocket expenses of the Administrative Agent and each of the BanksLenders), properly incurred by the Administrative Agent, any Issuing Bank Agent or any Bank Lender in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement including and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 10.04(a8.04(a). The Company Such reasonable fees and out-of-pocket expenses shall not be responsible reimbursed by the Borrower upon presentation to reimburse any Bank for the costs of the appointment by such Bank Borrower of a Confirming Bankstatement of account, regardless of whether this Agreement is executed and delivered by the parties hereto or the transactions contemplated by this Agreement are consummated.
(b) The Company Borrower hereby indemnifies agrees to indemnify the Administrative Agent, Citigroup Global Markets Inc., M▇▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated and J.▇. ▇▇▇▇▇▇ Securities LLC as Joint Lead Arrangers and Joint Book ManagersInc., each Bank, each Issuing Bank Lender and each of their respective Affiliates and their respective officers, directors, employees, agents, advisors and representatives (each, an “Indemnified Party”) from and against any and all direct claims, damages, losses, liabilities and expenses (including including, without limitation, reasonable fees and out-of-pocket disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Advances, whether or not such investigation, litigation or proceeding is brought by the CompanyBorrower, any of its shareholders stockholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article V 3 are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such direct claim, damage, loss, liability or expense results is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. The Company hereby further Borrower agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company Borrower for or in connection with or relating to this Agreement or the transactions contemplated hereby or therebythereby or any use made or proposed to be made with the proceeds of the Advances, except to the extent such liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct; provided that nothing in this paragraph shall be deemed , and the Borrower waives, to constitute a waiver of the maximum extent not prohibited by law, any claim the Company may have, or to exculpate any Person from any liability that such Person right it may have to the Company, for breach by such Person of its obligations under this Agreement. Neither any Bank, any Issuing Bank nor the Administrative Agent shall claim or recover in any event be liable for legal action or proceeding referred to in this Section 8.04 any indirectspecial, exemplary, punitive or consequential or punitive damages. No Indemnified Party The agreements in this Section 8.04(b) shall be liable for any damages arising from survive repayment of the use by unintended recipients of any information or Borrowings and all other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the transactions contemplated herebyamounts payable hereunder.
(c) If (i) the Company makes any payment of principal of of, or Conversion or Continuation of, any Eurodollar Rate Advance on a day is made other than on the last day of an Interest Period with respect theretofor such Advance as a result of any optional or mandatory prepayment, or (ii) acceleration of the Company fails to make a Borrowing or a prepayment of, or a continuation maturity of or a conversion into, Eurodollar Rate the Advances after having given notice thereof pursuant to this AgreementSection 6.01 or for any other reason, the Company Borrower shall reimburse each Bank upon demand pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any resulting lossadditional losses, cost costs or expense incurred by such Bank, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding expenses (other than loss of margin, for the period after profit) which it may reasonably incur as a result of such payment, failure Continuation or Conversion and the liquidation or reemployment of deposits or other funds acquired by any Lender to borrow, failure to continue, failure to convert fund or failure to prepay, following its receipt of a maintain such Advance. A certificate of such Bank in reasonable detail as to the amount of such losslosses, cost or expensecosts and expenses, which certificate submitted to the Borrower and the Administrative Agent by such Lender, shall be conclusive and binding on the Company in the absence of for all purposes, absent manifest error.
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