Expenses Indemnification Etc. (a) The Company shall pay all reasonable costs, expenses, taxes and fees (i) incurred by the Agent in connection with the preparation, execution and delivery of this Agreement, the Notes and all other documents incident hereto or thereto (collectively, the "Loan Documents") including, without limitation (but subject to the provisions of the Fee Letter), the reasonable costs and professional fees of Chapman and Cutler, Chicago, Illinois, whether or not any transaction ▇▇▇▇▇▇▇lated ▇▇▇▇▇y shall be consummated, and any and all stamp, intangible or other taxes that may be payable or determined in the future to be payable in connection therewith, (ii) incurred by the Agent in connection with the preparation, execution and delivery of any waiver, amendment or consent by the Banks, the Letter of Credit Bank or the Agent relating to the Loan Documents including, without limitation, reasonable costs and professional fees of counsel for the Agent; and (iii) actually incurred by the Agent, the Letter of Credit Bank or any of the Banks in enforcing the Loan Documents including, without limitation, reasonable attorneys' fees of counsel for the Agent, the Letter of Credit Bank or the Banks. (b) The Company shall indemnify the Agent, the Letter of Credit Bank and each Bank and hold the Agent, the Letter of Credit Bank and each Bank (and all directors, officers, employees and agents of any of the foregoing (the Agent, the Letter of Credit Bank, the Banks and such directors, officers, employees and agent each referred to as an "Indemnified Party")) harmless against, any and all costs, losses, liabilities, claims, damages or expenses incurred by an Indemnified Party, whether jointly or severally, and whether or not such Indemnified Party is designated a party thereto, arising out of or by reason of, or relating directly or indirectly to, (i) any investigation, litigation or other proceeding, pending or threatened, regarding any actions or failure to act by the Company involving this Agreement or any transaction contemplated hereby, (ii) any actual or proposed use by the Company or any of its Subsidiaries of the proceeds from any borrowing hereunder or the Letter of Credit, or (iii) the Agent's, any Bank's, the Letter of Credit Bank's or the Company's entering into and complying with this Agreement or in issuing or delivering the Notes or the Letter of Credit and including, without limitation, the reasonable fees and disbursements of such Indemnified Party's separate counsel incurred in connection with any such investigation, litigation or other proceeding (which shall be advanced by the Company on request notwithstanding any claim or assertion that the Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking to reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that the party is not so entitled). However, the indemnity of the Company set forth herein shall not cover the costs, losses, liabilities, claims, damages or expenses (x) incurred by an Indemnified Party arising out of the bad faith or willful misconduct of such Indemnified Party (as actually and finally determined by a court of competent jurisdiction) or (y) incurred by the Agent in connection with a suit, claim or cause of action brought against the Agent by a Bank pursuant to which such Bank alleges that the Agent has failed to perform the ministerial duties of the Agent as expressly set forth herein (such as administering the funding and collection of Loans, determining interest rates and the like). (c) The Agent, the Letter of Credit Bank and each Bank agree that in the event that any investigation, litigation, suit, action or proceeding is asserted or threatened in writing or instituted against it or any other Indemnified Party for which the Agent, the Letter of Credit Bank or any Bank may desire indemnity or defense hereunder, the Agent, the Letter of Credit Bank or such Bank shall promptly notify the Company thereof in writing and agree, to the extent appropriate, to consult with the Company with a view to minimizing the cost to the Company of its obligations under this Section 10.3. (d) No action taken by legal counsel chosen by an Indemnified Party in defending against any such investigation, litigation, suit, action or proceeding or requested remedial, removal or response action shall vitiate or in any way impair the obligations and duties of the Company hereunder to indemnify and hold harmless each Indemnified Party; provided, however, that if the Company is required to indemnify any Indemnified Party pursuant hereto, such Indemnified Party shall not settle or compromise any such investigation, litigation, suit, action or proceeding without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed) so long as the Company has provided evidence reasonably satisfactory to such Indemnified Party that the Equity of the Company and its Subsidiaries on a consolidated basis is not less than zero. (e) The obligations of the Company under this Section 10.3 shall survive transfer, payment or satisfaction of any Loan, Reimbursement Obligation and Note and any amendment, supplementation, modification or termination of this Agreement.
Appears in 1 contract
Expenses Indemnification Etc. (a) The Company shall pay all reasonable costs, expenses, taxes and fees pay: (i) incurred by all reasonable out-of-pocket expenses of the Agent Lender, in connection with (A) the negotiation, preparation, execution and delivery of the Basic Documents and the extension of credit under this AgreementAgreement (including the reasonable fees and expenses of Milbank, the Notes and all other documents incident hereto or thereto (collectivelyTweed, the "Loan Documents") including▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, without limitation (but subject counsel to the provisions Lender, and of the Fee Letter), the reasonable costs and professional fees of Chapman and Cutler, Chicago, Illinois, whether or not any transaction ▇▇▇▇▇ ▇▇▇▇▇▇▇lated ▇▇▇▇▇y shall be consummated, Nevada counsel to the Lender, in an aggregate amount not to exceed $150,000) and (B) any modification, supplement or waiver of any of the terms of any Basic Document and all stamp, intangible or other taxes that may be payable or determined in the future to be payable in connection therewith, (ii) incurred by all out- of-pocket expenses of the Agent Lender (including counsels' fees and expenses) in connection with (A) any Default and any enforcement or collection proceedings (including any bankruptcy, reorganization, workout or other similar proceeding) resulting from that Default or in connection with the preparation, execution and delivery negotiation of any waiver, amendment restructuring or consent by "work-out" (whether or not consummated) of the Banks, obligations of the Letter of Credit Bank or Company under the Agent relating to the Loan Basic Documents including, without limitation, reasonable costs and professional fees of counsel for the Agent; and (iiiB) actually incurred by the Agent, the Letter enforcement of Credit Bank or any of the Banks in enforcing the Loan Documents including, without limitation, reasonable attorneys' fees of counsel for the Agent, the Letter of Credit Bank or the Banksthis Section 9.02.
(b) The Company shall indemnify the Agent, the Letter of Credit Bank Lender and each Bank of Related Parties from, and hold the Agent, the Letter each of Credit Bank and each Bank (and all directors, officers, employees and agents of any of the foregoing (the Agent, the Letter of Credit Bank, the Banks and such directors, officers, employees and agent each referred to as an "Indemnified Party")) them harmless against, any and all costsjudgments, losses, liabilities, claims, damages or expenses incurred by an Indemnified Party, whether jointly or severally, and whether or not such Indemnified Party is designated a party thereto, arising out any of them in connection with or by reason of, or relating directly or indirectly to, of (i) any investigation, litigation or other proceeding, pending or threatened, regarding any actions or failure to act by the Company involving this Agreement execution and delivery of the Basic Documents or any transaction contemplated herebyrelated agreement, instrument or document, or the performance by any Person of its obligations under the Basic Documents, (ii) the Transactions, (iii) the making of the Loan or the use of the proceeds of the Loan, (iv) any actual or proposed use claimed presence or release of Hazardous Materials on or from any Property owned, leased or operated by the Company or other Related Person or (v) any actual or prospective claim, litigation, investigation or proceeding related to any of its Subsidiaries the foregoing, whether based on contract, tort or any other theory (but excluding any such losses, liabilities, damages or expenses incurred by reason of the proceeds from gross negligence or willful misconduct of the Person to be indemnified). It shall not be a condition to any borrowing hereunder or such indemnification that the Letter of Credit, or (iii) the Agent's, any Bank's, the Letter of Credit Bank's or the Company's entering into and complying with this Agreement or in issuing or delivering the Notes or the Letter of Credit and including, without limitation, the reasonable fees and disbursements of such Indemnified Party's separate counsel incurred in connection with Lender be a party to any such investigation, litigation or other proceeding (which shall be advanced by the Company on request notwithstanding any claim or assertion that the Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking to reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that the party is not so entitled). However, the indemnity of the Company set forth herein shall not cover the costs, losses, liabilities, claims, damages or expenses (x) incurred by an Indemnified Party arising out of the bad faith or willful misconduct of such Indemnified Party (as actually and finally determined by a court of competent jurisdiction) or (y) incurred by the Agent in connection with a suit, claim or cause of action brought against the Agent by a Bank pursuant to which such Bank alleges that the Agent has failed to perform the ministerial duties of the Agent as expressly set forth herein (such as administering the funding and collection of Loans, determining interest rates and the like)proceeding.
(c) The AgentTo the extent permitted by applicable law, the Letter Company shall not assert, and hereby waives, any claim against the Lender or its Related Parties, on any theory of Credit Bank and each Bank agree that in the event that any investigationliability, litigationfor special, suitindirect, action consequential or proceeding is asserted punitive damages (as opposed to direct or threatened in writing or instituted against it or any other Indemnified Party for which the Agent, the Letter of Credit Bank or any Bank may desire indemnity or defense hereunder, the Agent, the Letter of Credit Bank or such Bank shall promptly notify the Company thereof in writing and agree, to the extent appropriate, to consult with the Company with a view to minimizing the cost to the Company of its obligations under this Section 10.3actual damages).
(d) No action taken by legal counsel chosen by an Indemnified Party in defending against any such investigation, litigation, suit, action or proceeding or requested remedial, removal or response action shall vitiate or in any way impair the obligations and duties of the Company hereunder to indemnify and hold harmless each Indemnified Party; provided, however, that if the Company is required to indemnify any Indemnified Party pursuant hereto, such Indemnified Party shall not settle or compromise any such investigation, litigation, suit, action or proceeding without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed) so long as the Company has provided evidence reasonably satisfactory to such Indemnified Party that the Equity of the Company and its Subsidiaries on a consolidated basis is not less than zero.
(e) The obligations of the Company All amounts due under this Section 10.3 9.02 shall survive transfer, payment or satisfaction of any Loan, Reimbursement Obligation and Note and any amendment, supplementation, modification or termination of this Agreementbe payable not later than two (2) days after written demand.
Appears in 1 contract
Expenses Indemnification Etc. (a) The Company shall pay all reasonable costs, expenses, taxes and fees will pay: (i) incurred by the Agent in connection with the preparationall out-of-pocket expenses, execution costs and delivery fees of this AgreementLender, the Notes and all other documents incident hereto or thereto (collectively, the "Loan Documents") including, without limitation (but subject to the provisions of the Fee Letter), including the reasonable costs fees and professional fees expenses of Chapman and Cutler, Chicago, Illinois, whether or not any transaction ▇▇▇▇▇▇▇lated ▇▇ Will & ▇▇▇▇▇y shall be consummated▇ LLP, and any and all stampcounsel to Lender), intangible or other taxes that may be payable or determined in the future to be payable in connection therewith, (ii) incurred by the Agent in connection with (A) the negotiation, preparation, execution and delivery of any waiver, amendment or consent by the Banks, Basic Documents and the Letter extension of Credit Bank or credit under this Agreement not to exceed $100,000 (which shall be deducted from the Agent relating to proceeds of the Loan Documents including, without limitation, reasonable costs and professional fees of counsel for delivered by Lender on the Agent; Effective Date) and (iiiB) actually incurred by the Agentany modification, the Letter supplement or waiver of Credit Bank or any of the Banks terms of any Basic Document, and (ii) all out-of-pocket expenses, fees and costs of Lender (including counsel’s fees and expenses) in enforcing connection with (A) any Default and any enforcement or collection proceedings (including any bankruptcy, reorganization, workout or other similar proceeding) resulting from that Default or in connection with the Loan negotiation of any restructuring or “work out” (whether or not consummated) of the obligations of the Company under the Basic Documents including, without limitation, reasonable attorneys' fees and (B) the enforcement of counsel for the Agent, the Letter of Credit Bank or the Banksthis Section 10.02.
(b) The Company shall will indemnify the Agent, the Letter of Credit Bank Lender and each Bank of Related Parties from, and hold the Agent, the Letter each of Credit Bank and each Bank (and all directors, officers, employees and agents of any of the foregoing (the Agent, the Letter of Credit Bank, the Banks and such directors, officers, employees and agent each referred to as an "Indemnified Party")) them harmless against, any and all costsjudgments, losses, liabilities, claims, damages or expenses incurred by an Indemnified Party, whether jointly or severally, and whether or not such Indemnified Party is designated a party thereto, arising out any of them in connection with or by reason of, or relating directly or indirectly to, of (i) any investigation, litigation or other proceeding, pending or threatened, regarding any actions or failure to act by the Company involving this Agreement execution and delivery of the Basic Documents or any transaction contemplated herebyrelated agreement, instrument or document, or the performance by any Person of its obligations under the Basic Documents, (ii) the Transactions, (iii) the making of any Loan or the use of the proceeds of any Loan, (iv) any actual or proposed use claimed presence or release of Hazardous Materials on or from any Property owned, leased or operated by the Company or (v) any actual or prospective claim, litigation, investigation or proceeding related to any of its Subsidiaries the foregoing, whether based on contract, tort or any other theory; provided, however, that no Lender or Related Party shall be entitled to indemnification for any such losses, liabilities, damages or expenses incurred by reason of the proceeds from gross negligence or willful misconduct of the Person to be indemnified as determined by final non-appealable judgment by a court of competent jurisdiction. It shall not be a condition to any borrowing hereunder or the Letter of Credit, or (iii) the Agent's, any Bank's, the Letter of Credit Bank's or the Company's entering into and complying with this Agreement or in issuing or delivering the Notes or the Letter of Credit and including, without limitation, the reasonable fees and disbursements of such Indemnified Party's separate counsel incurred in connection with indemnification that Lender be a party to any such investigation, litigation or other proceeding (which proceeding. The agreements in this Section shall be advanced by the Company on request notwithstanding any claim or assertion that the Indemnified Party is not entitled to indemnification hereunder upon receipt survive payment of an undertaking to reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that the party is not so entitled). However, the indemnity of the Company set forth herein shall not cover the costs, losses, liabilities, claims, damages or expenses (x) incurred by an Indemnified Party arising out of the bad faith or willful misconduct of such Indemnified Party (as actually and finally determined by a court of competent jurisdiction) or (y) incurred by the Agent in connection with a suit, claim or cause of action brought against the Agent by a Bank pursuant to which such Bank alleges that the Agent has failed to perform the ministerial duties of the Agent as expressly set forth herein (such as administering the funding and collection of Loans, determining interest rates and the like)all Obligations.
(c) The AgentTo the extent permitted by applicable law, the Letter Company will not assert, and hereby waives, any claim against Lender or its Related Parties, on any theory of Credit Bank and each Bank agree that in the event that any investigationliability, litigationfor special, suitindirect, action consequential or proceeding is asserted punitive damages (as opposed to direct or threatened in writing or instituted against it or any other Indemnified Party for which the Agent, the Letter of Credit Bank or any Bank may desire indemnity or defense hereunder, the Agent, the Letter of Credit Bank or such Bank shall promptly notify the Company thereof in writing and agree, to the extent appropriate, to consult with the Company with a view to minimizing the cost to the Company of its obligations under this Section 10.3actual damages).
(d) No action taken by legal counsel chosen by an Indemnified Party in defending against any such investigation, litigation, suit, action or proceeding or requested remedial, removal or response action shall vitiate or in any way impair the obligations and duties of the Company hereunder to indemnify and hold harmless each Indemnified Party; provided, however, that if the Company is required to indemnify any Indemnified Party pursuant hereto, such Indemnified Party shall not settle or compromise any such investigation, litigation, suit, action or proceeding without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed) so long as the Company has provided evidence reasonably satisfactory to such Indemnified Party that the Equity of the Company and its Subsidiaries on a consolidated basis is not less than zero.
(e) The obligations of the Company All amounts due under this Section 10.3 10.02 shall survive transfer, payment or satisfaction of any Loan, Reimbursement Obligation and Note and any amendment, supplementation, modification or termination of this Agreementbe payable not later than 10 days after written demand therefor.
Appears in 1 contract
Expenses Indemnification Etc. (a) The Company shall pay all reasonable costs, expenses, taxes and fees (i) incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, the Notes and all other documents incident hereto or thereto (collectively, the "Loan Documents") including, without limitation (but subject to the provisions of the Fee Letter)limitation, the reasonable costs and professional fees of Chapman and Cutler, Chicago, Illinois, whether or not any transaction ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇lated ▇▇▇▇▇y , New York, New York, whether or not any transaction contemplated hereby shall be consummated, and any and all stamp, intangible or other taxes that may be payable or determined in the future to be payable in connection therewith, (ii) incurred by the Administrative Agent in connection with the administration of the Term Loans and the Loan Documents in accordance with the provisions thereof and the preparation, execution and delivery of any waiver, amendment or consent by the Banks, the Letter of Credit Bank Banks or the Administrative Agent relating to the Loan Documents including, without limitation, reasonable costs and professional fees of counsel for the Administrative Agent; and (iii) actually incurred by the Agent, the Letter of Credit Bank Administrative Agent or any of the Banks in enforcing the Loan Documents including, without limitation, reasonable attorneys' fees of counsel for the Agent, the Letter of Credit Bank Administrative Agent or the Banks.
(b) The Company shall indemnify the Agent, the Letter of Credit Bank Administrative Agent and each Bank and hold the Agent, the Letter of Credit Bank Administrative Agent and each Bank (and all directors, officers, employees and agents of any of the foregoing (the Administrative Agent, the Letter of Credit Bank, the Banks and such directors, officers, employees and agent agents each referred to as an "Indemnified Party")) harmless against, any and all costs, losses, liabilities, claims, damages or expenses incurred by an Indemnified Party, whether jointly or severally, and whether or not such Indemnified Party is designated a party thereto, arising out of or by reason of, or relating directly or indirectly to, (i) any investigation, litigation or other proceeding, pending or threatened, regarding any actions or failure to act by the Company involving this Agreement or any transaction contemplated hereby, (ii) any actual or proposed use by the Company or any of its Subsidiaries of the proceeds from any borrowing hereunder or the Letter of Credithereunder, or (iii) the Administrative Agent's, any Bank's, the Letter of Credit Bank's or the Company's entering into and complying with this Agreement or in issuing or delivering the Notes or the Letter of Credit and including, without limitation, the reasonable fees and disbursements of such Indemnified Party's separate counsel incurred in connection with any such investigation, litigation or other proceeding (which shall be advanced by the Company on request notwithstanding any claim or assertion that the Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking to reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that the party is not so entitled). However, the indemnity of the Company set forth herein shall not cover the costs, losses, liabilities, claims, damages or expenses (x) incurred by an Indemnified Party arising out of the bad faith or willful misconduct of such Indemnified Party (as actually and finally determined by a court of competent jurisdiction) or (y) incurred by the Administrative Agent in connection with a suit, claim or cause of action brought against the Administrative Agent by a Bank pursuant to which such Bank alleges that the Administrative Agent has failed to perform the ministerial duties of the Administrative Agent as expressly set forth herein (such as administering the funding and collection of Term Loans, determining interest rates and the like).
(c) The Agent, the Letter of Credit Bank Administrative Agent and each Bank agree that in the event that any investigation, litigation, suit, action or proceeding is asserted or threatened in writing or instituted against it or any other Indemnified Party for which the Agent, the Letter of Credit Bank Administrative Agent or any Bank may desire indemnity or defense hereunder, the Agent, the Letter of Credit Bank Administrative Agent or such Bank shall promptly notify the Company thereof in writing and agree, to the extent appropriate, appropriate to consult with the Company with a view to minimizing the cost to the Company of its obligations under this Section 10.311.3.
(d) No action taken by legal counsel chosen by an Indemnified Party in defending against any such investigation, litigation, suit, action or proceeding or requested remedial, removal or response action shall vitiate or in any way impair the obligations and duties of the Company hereunder to indemnify and hold harmless each Indemnified Party; provided, however, that if the Company is required to indemnify any Indemnified Party pursuant hereto, such Indemnified Party shall not settle or compromise any such investigation, litigation, suit, action or proceeding without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed) so long as the Company has provided evidence reasonably satisfactory to such Indemnified Party that the Equity of the Company and its Subsidiaries on a consolidated basis is not less than zero.
(e) The obligations of the Company under this Section 10.3 11.3 shall survive transfer, payment or satisfaction of any Loan, Reimbursement Obligation and Note and any amendment, supplementation, modification or termination of this Agreement.
Appears in 1 contract
Expenses Indemnification Etc. (a) The Company shall pay all reasonable costs, expenses, taxes and fees will pay: (i) incurred by all reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to Administrative Agent), in connection with (A) the negotiation, preparation, execution and delivery of the Basic Documents and the extension of credit under this AgreementAgreement and (B) any modification, the Notes and all other documents incident hereto supplement or thereto (collectively, the "Loan Documents") including, without limitation (but subject to the provisions waiver of any of the Fee Letter), the reasonable costs terms of any Basic Document and professional fees of Chapman and Cutler, Chicago, Illinois, whether or not any transaction ▇▇▇▇▇▇▇lated ▇▇▇▇▇y shall be consummated, and any and all stamp, intangible or other taxes that may be payable or determined in the future to be payable in connection therewith, (ii) incurred by the Agent all out-of-pocket expenses of each Lender Party (including counsels' fees and expenses) in connection with (A) any Default and any enforcement or collection proceedings (including any bankruptcy, reorganization, workout or other similar proceeding) resulting from that Default or in connection with the preparation, execution and delivery negotiation of any waiver, amendment restructuring or consent by "work-out" (whether or not consummated) of the Banks, obligations of the Letter of Credit Bank or Company under the Agent relating to the Loan Basic Documents including, without limitation, reasonable costs and professional fees of counsel for the Agent; and (iiiB) actually incurred by the Agent, the Letter enforcement of Credit Bank or any of the Banks in enforcing the Loan Documents including, without limitation, reasonable attorneys' fees of counsel for the Agent, the Letter of Credit Bank or the Banksthis Section 10.02.
(b) The Company shall will indemnify the Agent, the Letter of Credit Bank each Lender Party and each Bank of the Related Parties from, and hold the Agent, the Letter each of Credit Bank and each Bank (and all directors, officers, employees and agents of any of the foregoing (the Agent, the Letter of Credit Bank, the Banks and such directors, officers, employees and agent each referred to as an "Indemnified Party")) them harmless against, any and all costsjudgments, losses, liabilities, claims, damages or expenses incurred by an Indemnified Party, whether jointly or severally, and whether or not such Indemnified Party is designated a party thereto, arising out any of them in connection with or by reason of, or relating directly or indirectly to, of (i) any investigation, litigation or other proceeding, pending or threatened, regarding any actions or failure to act by the Company involving this Agreement execution and delivery of the Basic Documents or any transaction contemplated herebyrelated agreement, instrument or document, or the performance by any Person of its obligations under the Basic Documents, (ii) the Transactions, (iii) the making of any Loan or the use of the proceeds of any Loan, (iv) any actual or proposed use claimed presence or release of Hazardous Materials on or from any Property owned, leased or operated by the Company or any of its Subsidiaries or (v) any actual or prospective claim, litigation, investigation or proceeding related to any of the proceeds from foregoing, whether based on contract, tort or any borrowing hereunder other theory (but excluding any such losses, liabilities, damages or expenses incurred by reason of the Letter gross negligence or willful misconduct of Credit, the Person to be indemnified). It shall not be a condition to any such indemnification that the Administrative Agent or (iii) the Agent's, any Bank's, the Letter of Credit Bank's or the Company's entering into and complying with this Agreement or in issuing or delivering the Notes or the Letter of Credit and including, without limitation, the reasonable fees and disbursements of such Indemnified Party's separate counsel incurred in connection with Lender be a party to any such investigation, litigation or other proceeding (which shall be advanced by the Company on request notwithstanding any claim or assertion that the Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking to reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that the party is not so entitled). However, the indemnity of the Company set forth herein shall not cover the costs, losses, liabilities, claims, damages or expenses (x) incurred by an Indemnified Party arising out of the bad faith or willful misconduct of such Indemnified Party (as actually and finally determined by a court of competent jurisdiction) or (y) incurred by the Agent in connection with a suit, claim or cause of action brought against the Agent by a Bank pursuant to which such Bank alleges that the Agent has failed to perform the ministerial duties of the Agent as expressly set forth herein (such as administering the funding and collection of Loans, determining interest rates and the like)proceeding.
(c) The Agent, To the Letter of Credit Bank and each Bank agree extent that in the event that Company fails to pay any investigation, litigation, suit, action or proceeding is asserted or threatened in writing or instituted against amount required to be paid by it to the Administrative Agent (or any Related Party of that Person) under the preceding provision of this Section 10.02, each other Indemnified Party for which the Agent, the Letter of Credit Bank or any Bank may desire indemnity or defense hereunder, the Agent, the Letter of Credit Bank or such Bank shall promptly notify the Company thereof in writing and agree, Lender severally agrees to pay to the extent appropriateAdministrative Agent that Lender's Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of that unpaid amount; PROVIDED that the unreimbursed expense or indemnified judgment, to consult loss, liability, damage, or expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such or against its Related Party in connection with the Company with a view to minimizing the cost to the Company of its obligations under this Section 10.3that capacity.
(d) No action taken To the extent permitted by legal counsel chosen by an Indemnified Party in defending applicable law, the Company will not assert, and hereby waives, any claim against any such investigationLender Party or its Related Parties, litigationon any theory of liability, suitfor special, action indirect, consequential or proceeding punitive damages (as opposed to direct or requested remedial, removal or response action shall vitiate or in any way impair the obligations and duties of the Company hereunder to indemnify and hold harmless each Indemnified Party; provided, however, that if the Company is required to indemnify any Indemnified Party pursuant hereto, such Indemnified Party shall not settle or compromise any such investigation, litigation, suit, action or proceeding without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed) so long as the Company has provided evidence reasonably satisfactory to such Indemnified Party that the Equity of the Company and its Subsidiaries on a consolidated basis is not less than zeroactual damages).
(e) The obligations of the Company All amounts due under this Section 10.3 10.02 shall survive transfer, payment or satisfaction of any Loan, Reimbursement Obligation and Note and any amendment, supplementation, modification or termination of this Agreementbe payable not later than five days after written demand.
Appears in 1 contract
Expenses Indemnification Etc. (a) The Company shall pay all reasonable costs, expenses, taxes and fees (i) incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, the Notes and all other documents incident hereto or thereto (collectively, the "Loan Documents") including, without limitation (but subject to the provisions of the Fee Letter)limitation, the reasonable costs and professional fees of Chapman and CutlerSimpson Thacher & Bartlett, ChicagoNew York, IllinoisNew York, whether or not any transaction an▇ ▇▇▇▇▇▇▇lated ▇▇▇▇ ▇ont▇▇▇▇▇y ▇▇▇ hereby shall be consummated, and any and all stamp, intangible or other taxes that may be payable or determined in the future to be payable in connection therewith, (ii) incurred by the Administrative Agent in connection with the administration of the Term Loans and the Loan Documents in accordance with the provisions thereof and the preparation, execution and delivery of any waiver, amendment or consent by the Banks, the Letter of Credit Bank Banks or the Administrative Agent relating to the Loan Documents including, without limitation, reasonable costs and professional fees of counsel for the Administrative Agent; and (iii) actually incurred by the Agent, the Letter of Credit Bank Administrative Agent or any of the Banks in enforcing the Loan Documents including, without limitation, reasonable attorneys' fees of counsel for the Agent, the Letter of Credit Bank Administrative Agent or the Banks.
(b) The Company shall indemnify the Agent, the Letter of Credit Bank Administrative Agent and each Bank and hold the Agent, the Letter of Credit Bank Administrative Agent and each Bank (and all directors, officers, employees and agents of any of the foregoing (the Administrative Agent, the Letter of Credit Bank, the Banks and such directors, officers, employees and agent agents each referred to as an "Indemnified Party")) harmless against, any and all costs, losses, liabilities, claims, damages or expenses incurred by an Indemnified Party, whether jointly or severally, and whether or not such Indemnified Party is designated a party thereto, arising out of or by reason of, or relating directly or indirectly to, (i) any investigation, litigation or other proceeding, pending or threatened, regarding any actions or failure to act by the Company involving this Agreement or any transaction contemplated hereby, (ii) any actual or proposed use by the Company or any of its Subsidiaries of the proceeds from any borrowing hereunder or the Letter of Credithereunder, or (iii) the Administrative Agent's, any Bank's, the Letter of Credit Bank's or the Company's entering into and complying with this Agreement or in issuing or delivering the Notes or the Letter of Credit and including, without limitation, the reasonable fees and disbursements of such Indemnified Party's separate counsel incurred in connection with any such investigation, litigation or other proceeding (which shall be advanced by the Company on request notwithstanding any claim or assertion that the Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking to reimburse the Company if it is actually and finally determined by a court of competent jurisdiction that the party is not so entitled). However, the indemnity of the Company set forth herein shall not cover the costs, losses, liabilities, claims, damages or expenses (x) incurred by an Indemnified Party arising out of the bad faith or willful misconduct of such Indemnified Party (as actually and finally determined by a court of competent jurisdiction) or (y) incurred by the Administrative Agent in connection with a suit, claim or cause of action brought against the Administrative Agent by a Bank pursuant to which such Bank alleges that the Administrative Agent has failed to perform the ministerial duties of the Administrative Agent as expressly set forth herein (such as administering the funding and collection of Term Loans, determining interest rates and the like).
(c) The Agent, the Letter of Credit Bank Administrative Agent and each Bank agree that in the event that any investigation, litigation, suit, action or proceeding is asserted or threatened in writing or instituted against it or any other Indemnified Party for which the Agent, the Letter of Credit Bank Administrative Agent or any Bank may desire indemnity or defense hereunder, the Agent, the Letter of Credit Bank Administrative Agent or such Bank shall promptly notify the Company thereof in writing and agree, to the extent appropriate, appropriate to consult with the Company with a view to minimizing the cost to the Company of its obligations under this Section 10.311.3.
(d) No action taken by legal counsel chosen by an Indemnified Party in defending against any such investigation, investigation litigation, suit, action or proceeding or requested remedial, removal or response action shall vitiate or in any way impair the obligations and duties of the Company hereunder to indemnify and hold harmless each Indemnified Party; provided, however, that if the Company is required to indemnify any Indemnified Party pursuant hereto, such Indemnified Party shall not settle or compromise any such investigation, investigation litigation, suit, action or proceeding without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed) so long as the Company has provided evidence reasonably satisfactory to such Indemnified Party that the Equity of the Company and its Subsidiaries on a consolidated basis is not less than zero.
(e) The obligations of the Company under this Section 10.3 11.3 shall survive transfer, payment or satisfaction of any Loan, Reimbursement Obligation and Note and any amendment, supplementation, modification or termination of this Agreement.
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