General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Doane Products Co), Revolving Credit and Term Loan Agreement (Doane Products Co)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.312.02, whether or not from and after the transactions contemplated hereby shall be consummatedEffective Date, Borrower each Seller Party, jointly and severally, hereby agrees to defend, indemnify, pay and hold harmless each of the Collateral Agent and its Affiliates and its and their respective partners, directors, managers, trustees, officers, agents, sub-agents and employees (the “Agent Indemnified Parties”) and the Purchasers and each of the Banks their Affiliates and any holder(s) of the Notes, its and the officerstheir respective partners, directors, employeesmanagers, trustees, officers, agents and affiliates of employees (the Agent, each of “Purchaser Indemnified Parties”; and together with the Banks and such holder(s) (collectivelyAgent Indemnified Parties, the "Indemnitees"“Indemnified Parties”) harmless from from, against and against in respect of all Indemnified Liabilities in all cases, whether based on contract, tort or any other theory, whether brought by a third party or by any Seller Party, and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses regardless of whether any Indemnified Party is a party thereto and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not caused by or arising, in whole or in part, out of the comparative contributory or sole negligence of such Indemnitees shall be designated a party thereto)Indemnified Party; provided, however, that may be imposed onthe foregoing shall exclude any indemnification to any Purchaser Indemnified Party to the extent such Indemnified Liabilities (x) are determined by a court of competent jurisdiction by final and non-appealable judgement to have resulted from the gross negligence, incurred by willful misconduct, or asserted against the Indemnitees, in any manner relating to fraud of such Purchaser Indemnified Party or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered (y) result from a claim brought by the Agent or any Seller Parties against such Purchaser Indemnified Party for a material breach of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit such Purchaser Indemnified Party’s funding obligations hereunder or (z) arise from a dispute solely among the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities")Purchaser Indemnified Parties; provided further, however, that Borrower the foregoing shall exclude any indemnification to any Agent Indemnified Party to the extent such Indemnified Liabilities (x) are determined by a court of competent jurisdiction by final and non-appealable judgement to have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising resulted from the gross negligence or willful misconduct of such Agent Indemnified Party or (y) arise from a dispute solely among the Indemnified Parties (other than against the Collateral Agent in its capacity as such). This Section 8.01 (a) shall not apply with respect to Taxes other than any Taxes that Indemnitee as determined by a court represent Losses arising from any non-Tax claim and (b) shall survive the termination of competent jurisdiction in a final nonappealable orderthis Agreement. To the extent that the undertaking undertakings to defend, indemnify, pay and hold harmless set forth in the preceding sentence this Section 8.01 may be unenforceable in whole or in part because it is they are violative of any law or public policy, Borrower the applicable Seller Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities Indemnified Liabilities incurred by the Indemnitees Indemnified Parties or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.
Appears in 2 contracts
Sources: Funding Agreement (BridgeBio Pharma, Inc.), Funding Agreement (BridgeBio Pharma, Inc.)
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not Lenders and the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay ----------------- Agent and hold them harmless from any liability, loss or damage resulting from the Agent and violation by the Company of Section 2.4. In addition, the Company shall indemnify each of Lender, the Banks and any holder(s) of Agent, the Notes, and the officers, directors, employees, agents and affiliates of the Syndication Agent, each of the Banks Lenders' or the Agent's or the Syndication Agent's directors, officers, employees, agents, attorneys, accountants, consultants and such holder(s) each Person, if any, who controls any Lender or the Agent or the Syndication Agent (collectivelyeach Lender, the Agent, the Syndication Agent and each of such directors, officers, employees, agents, attorneys, accountants, consultants and control Persons is referred to as an "IndemniteesIndemnified Party") and hold each of them harmless from and against any and all other liabilities, obligations, losses----------------- claims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the Credit Security in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document however, that the foregoing indemnity shall not apply to litigation -------- ------- commenced by the Company against the Lenders or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement Syndication Agent which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyAgent or the Syndication Agent in a final nonappealable judgment or to the extent such claims, damages, liabilities and expenses result from a Lender's or the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from Agent's or the Syndication Agent's gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 2 contracts
Sources: Credit Agreement (Sba Communications Corp), Credit Agreement (Sba Communications Corp)
General Indemnity. In addition to Without limiting any other rights which any such Person may have hereunder or under applicable law, the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnifyindemnify each of the GWG Trustee, pay and hold Master Collateral Agent, the Agent Servicer, and each of the Banks their respective successors, transferees, participants and any holder(s) of the Notes, assigns and the all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agent, foregoing (each of the Banks and such holder(s) (collectivelyforegoing Persons being individually called an “Indemnified Party”), the "Indemnitees") harmless forthwith on demand, from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related and reasonable costs and expenses actually incurred, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable attorneys’ fees and disbursements actually incurred (all of counsel for the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated thereby, the acceptance and administration of this Agreement by such Indemnitees in connection with Person, any investigative, administrative or judicial proceeding commenced or threatened, commingling of funds (whether or not such Indemnitees shall be designated a party theretopermitted hereunder), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use of proceeds therefrom by the Borrower, GWG DLP Funding II, LLC or intended use the Master Trusts, including (without limitation) in respect of the proceeds funding of any Loan hereunder or in respect of any Insurance Policy; excluding, however, (collectively, i) Indemnified Amounts to the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as extent determined by a court of competent jurisdiction to have resulted from gross negligence on the part of any Indemnified Party, and (ii) any tax upon or measured by net income (except those described in Section 7.1(a)) on any Indemnified Party; including (without limitation), however, Indemnified Amounts resulting from or relating to:
(a) any representation or warranty made by or on behalf of the Borrower (including in its capacity as Master Servicer), GWG DLP Funding II, LLC, the Master Trusts, GWG Trust in this Agreement or any other Transaction Document, which was incorrect in any respect when made;
(b) failure by the Borrower (including in its capacity as Master Servicer), GWG DLP Funding II, LLC, the Master Trusts, to comply with any covenant made by it in this Agreement or in any of the other Transaction Documents;
(c) except as expressly set forth in this Agreement, the failure by the Borrower to create and maintain in favor of GWG Trust, for the benefit of the Lenders a final nonappealable ordervalid security interest in the Collateral, free and clear of any Lien (other than the Liens under the Transaction Documents);
(d) the Borrower’s, GWG DLP Funding II, LLC’s or the Master Trusts’ use of the proceeds of the Loans;
(e) the failure by the Borrower (including in its capacity as Master Servicer), GWG DLP Funding II, LLC, the Master Trusts to pay when due any taxes (including sales, excise or personal property taxes) payable in connection with the purchase and sale of the Conveyed Property;
(f) the commingling of the Collections with other funds of the Borrower (including in its capacity as Master Servicer), GWG DLP Funding II, LLC the Master Trusts, or any other Person;
(g) any legal action, judgment or garnishment affecting, or with respect to, distributions on any Insurance Policy or the Transaction Documents; and
(h) any failure to comply with any Applicable Law with respect to any Insurance Policy or any other part of the Collateral. To If and to the extent that the foregoing undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of for any law or public policyreason, the Borrower shall contribute hereby agrees to make the maximum portion that it is permitted to pay and satisfy under applicable law contribution to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out amounts indemnified against in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement12.1 that is permissible under Applicable Law.
Appears in 2 contracts
Sources: Note Issuance and Security Agreement (GWG Holdings, Inc.), Note Issuance and Security Agreement (GWG Life Settlements, LLC)
General Indemnity. In addition 8.10.1 The Borrower hereby agrees at all times to pay promptly or, as the case may be, indemnify and hold the Facility Beneficiaries, GIEK and the Affiliates of any Facility Beneficiary, GIEK and each of them and their respective officers, directors, representatives, agents and employees (together the Indemnified Parties) harmless on a full indemnity basis from and against each and every Loss suffered or incurred by or imposed on any Indemnified Party related to or arising out of:
(a) the use of proceeds of the Facility;
(b) the execution and delivery of any commitment letter, engagement letter, fee letter, the Facility Documents or any other document connected therewith or the performance of the respective obligations thereunder, including without limitation environmental liabilities; or
(c) any claim, action, suit, investigation or proceeding relating to the payment of expenses pursuant to Section 13.3foregoing or the Security Parties, whether or not any Indemnified Party is a party thereto or target thereof, or the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the NotesIndemnified Parties’ roles in connection therewith, and will reimburse the officersIndemnified Parties, directorson demand, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) for all reasonable expenses (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable counsel fees and disbursements of counsel for such Indemnitees expenses) as they are incurred by the Indemnified Parties in connection with investigating, preparing for or defending any investigativesuch claim, administrative action, suit or judicial proceeding commenced (including any security holder actions or threatenedproceeding, inquiry or investigation), whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith with pending or therewiththreatened litigation in which the Security Parties are a party.
8.10.2 The Borrower will not, the statements contained in however, be responsible for any commitment letters delivered by the Agent claims, liabilities, losses, damages or any expenses of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided an Indemnified Party that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as are finally judicially determined by a court of competent jurisdiction to have resulted from the wilful misconduct or gross negligence by such Indemnified Party.
8.10.3 The foregoing shall be in a final nonappealable order. To the extent addition to any rights that the undertaking Indemnified Parties may have at common law or otherwise and shall extend upon the same terms to indemnify, pay and hold harmless set forth in inure to the preceding sentence may be unenforceable because it is violative benefit of any law affiliate, director, officer, employee, agent or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction controlling person of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementan Indemnified Party.
Appears in 2 contracts
Sources: Secured Term Loan Facility Agreement (Teekay Offshore Partners L.P.), Secured Term Loan Facility Agreement
General Indemnity. In addition to the payment of expenses pursuant Subject to Section 13.39.5, whether or not the transactions contemplated hereby Borrower shall be consummated, Borrower hereby agrees to indemnify, pay indemnify the Lenders and hold the Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Borrower of Section 2.3. In addition, subject to Section 9.5, the Borrower shall indemnify each of the Banks and any holder(s) of the NotesLender, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks Lenders' or the Agent's directors, officers, employees, agents, attorneys, accountants, consultants and such holder(s) Affiliates (collectivelyeach Lender, the Agent and each of such directors, officers, employees, agents, attorneys, accountants, consultants and Affiliates is referred to as an "IndemniteesIndemnified Party") and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating to proceeding involving the Borrower or arising out any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Borrower, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, or (c) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply (i) to litigation commenced by the Borrower against the Lenders or the Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Borrower hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of Agent in a final nonappealable judgment or (ii) to any Loan hereunder (collectivelyIndemnified Party to the extent such claims, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified damages, liabilities arising from the gross negligence or willful misconduct of that Indemnitee as and expenses are determined in a final, nonappealable judgment by a court of competent jurisdiction in a final nonappealable orderto have resulted from such Indemnified Party's own gross negligence or willful misconduct. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementTHE BORROWER EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 2 contracts
Sources: Credit Agreement (American Biltrite Inc), Credit Agreement (American Biltrite Inc)
General Indemnity. In addition Borrower agrees upon demand to pay or reimburse Lender for all liabilities, obligations and out-of-pocket expenses, including Lender’s expenses and reasonable fees and expenses of counsel for Lender from time to time arising in connection with the payment enforcement or collection of expenses pursuant to Section 13.3sums due under this Note or the Share Exchange Agreement, whether and in connection with any amendment or not the transactions contemplated hereby modification of such documents or any “work-out” in connection with such documents. Borrower shall be consummated, Borrower hereby agrees to indemnify, pay reimburse and hold the Agent Lender and each of the Banks and any holder(s) of the Notesits respective successors, and the assigns, agents, attorneys, officers, directors, employeesshareholders, servants, agents and affiliates of the Agent, employees (each of the Banks and such holder(s) (collectively, the "Indemnitees"an “Indemnified Person”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claimsdemands, costs, expenses and disbursements claims of any kind and nature (including claims relating to environmental discharge, cleanup or nature compliance), all costs and expenses whatsoever to the extent they may be incurred or suffered by such Indemnified Person in connection therewith (including, without limitation, the including reasonable attorneys’ fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoexpenses), that may be imposed onfines, incurred by penalties (and other charges of any applicable governmental authority), licensing fees relating to any item of Collateral, damage to or asserted against the Indemniteesloss of use of property (including consequential or special damages to third parties or damages to Borrower’s property), in or bodily injury to or death of any manner person (including any agent or employee of Borrower) (each, a “Claim”), directly or indirectly relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectivelythe Loans or otherwise, the "indemnified liabilities")falsity of any representation or warranty of Borrower or Borrower’s failure to comply with the terms of this Note or the Share Exchange Agreement. The foregoing indemnity shall cover, without limitation, (i) any Claim in connection with a design or other defect (latent or patent) in any item of equipment or product included in the Collateral, (ii) any Claim for infringement of any patent, copyright, trademark or other intellectual property right, (iii) any Claim resulting from the presence on or under or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Substances on the premises owned, occupied or leased by Borrower, including any Claims asserted or arising under any environmental law, or (iv) any Claim for negligence or strict or absolute liability in tort; provided that provided, however, Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the not indemnify Lender for any liability incurred by Lender as a direct and sole result of Lender’s gross negligence or willful misconduct misconduct. Such indemnities shall continue in full force and effect, notwithstanding the expiration or termination of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderthis Note. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policyUpon Lender’s written demand, Borrower shall contribute assume and diligently conduct, at its sole cost and expense, the maximum portion that it is permitted to pay entire defense of Lender, each of its partners, and satisfy under applicable law to the payment each of their respective, agents, employees, directors, officers, shareholders, successors and satisfaction of all assigns against any indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out Claim described in this Section 13.5 Section. Borrower shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementnot settle or compromise any Claim against or involving Lender without first obtaining Lender’s written consent thereto, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Sources: Note and Security Agreement (Cellular Technical Services Co Inc), Note and Security Agreement (Cellular Technical Services Co Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether Whether or not the transactions contemplated hereby shall be consummated, Borrower hereby each Loan Party jointly and severally agrees to indemnify, pay and hold the Agent, the Co-Agent and each of the Banks and any holder(s) of the NotesBank, and the shareholders, officers, directors, employeesAffiliates, employees and agents and affiliates of the Agent, the Co-Agent and each of the Banks and such holder(s) Bank (collectivelyeach, the an "IndemniteesIndemnified Person") ), harmless from and against any and all other claims, liabilities, obligations, losses, damages, penaltiescosts and expenses, actions, judgments, suits, claims, costs, expenses including reasonable attorneys' fees and disbursements of any kind or nature whatsoever costs (including, without limitation, including the reasonable fees estimate of the allocated cost of in-house legal counsel and disbursements staff) and including costs of counsel for such Indemnitees in connection with any investigativeinvestigation, administrative document production, attendance at deposition or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto)other discovery, that may be imposed on, incurred by or asserted against the Indemniteesany Indemnified Person, in any manner relating to or each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with the transactions contemplated by this Agreement, any of Loan Document, the other Transaction Documents Restructuring or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended contemplated use of the proceeds of the Term Loan, or the issuance of any Loan hereunder letter of credit pursuant to any Letter of Credit Agreement, whether or not an Indemnified Person is a party thereto (collectively, the "indemnified liabilitiesIndemnified Liabilities"); provided , except to the extent that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising such Indemnified Liabilities result from the gross negligence or willful wilful misconduct of the Agent, the Co-Agent or any Bank. If any claim is made, or any action, suit or proceeding is brought, against any Indemnified Person described in this Section, the Indemnified Person shall notify Loan Parties of such claim or of the commencement of such action, suit or proceeding, and Loan Parties shall have the option to, and at the request of the Indemnified Person shall, jointly direct and control the defense of such action, suit or proceeding, employing counsel selected by Loan Parties and reasonably satisfactory to the Indemnified Person, and pay the fees and expenses of such counsel; provided, however, that Indemnitee as determined by a court any Indemnified Person may at its own expense retain separate counsel to participate in such defense. Notwithstanding the foregoing, such Indemnified Person shall have the right to employ separate counsel at the expense of competent jurisdiction in a final nonappealable order. To the extent that the undertaking Loan Parties, jointly and severally, and to indemnifycontrol and direct its own defense of such action, pay and hold harmless set forth suit or proceeding if, in the preceding sentence reasonable opinion of counsel to such Indemnified Person, (i) there are or may be unenforceable because legal defenses available to such Indemnified Person or to other Indemnified Persons that are different from or additional to those available to any Loan Party that such Loan Party cannot assert, or (ii) a conflict or potential conflict exists between any Loan Party and such Indemnified Person that would make such separate representation advisable. Each Loan Party agrees that it is violative will not, without the prior written consent of the Agent, the Co-Agent and each other Indemnified Person settle or compromise or consent to the entry of any law judgment in any pending or public policythreatened claim, Borrower shall contribute action, suit or proceeding with respect to which the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out provided for in this Section 13.5 shall survive satisfaction is available (whether or not any Indemnified Person is a party thereto) unless such settlement, compromise or consent includes an unconditional release of the Agent, the Co-Agent and payment of Borrower's Obligations and the termination of this Agreement.each
Appears in 1 contract
Sources: Credit Agreement (Stormedia Inc)
General Indemnity. In addition to The Borrowers shall indemnify the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Lenders and hold the Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Borrowers of Section 2.5 and from and against all losses, costs and expenses, incurred in liquidating or employing deposits from third parties acquired or arranged, or in terminating or unwinding any contract entered into, or order to effect or fund the whole or any part of any drawing or any overdue amount hereunder incurred by any Lender as a consequence of any Default or the repayment of any amount due hereunder other than at the expiration of an Interest Period. In addition, the Borrowers shall indemnify each of the Banks and any holder(s) of the NotesLender, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks Lenders’ or the Agent’s directors, officers and such holder(s) employees, and each Person, if any, who controls any Lender or the Agent (collectivelyeach Lender, the "Indemnitees"Agent and each of such directors, officers, employees and control Persons is referred to as an “Indemnified Party”) and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses (including reasonable fees of and disbursements to counsel with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any kind Indemnified Party may incur or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party’s compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving any Borrower or any Subsidiary, or any of their Affiliates, (b) any litigation or investigation involving any Borrower, any Subsidiary or any of their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to any collateral for the Credit Obligations in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply to litigation commenced by the Borrowers against the Lenders or the Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Borrowers hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyAgent in a final nonappealable judgment or to the extent such claims, damages, liabilities and expenses result from a Lender’s or the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the Agent’s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Ch2m Hill Companies LTD)
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not Lenders and the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay ----------------- Agent and hold them harmless from any liability, loss or damage resulting from the Agent and violation by the Company of Section 2.5. In addition, the Company shall indemnify each of the Banks and any holder(s) of the NotesLender, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks Lenders' or the Agent's directors, officers and such holder(s) employees, and each Person, if any, who controls any Lender or the Agent (collectivelyeach Lender, the Agent and each of such directors, officers, employees and control Persons is referred to as an "IndemniteesIndemnified Party") and hold each of ----------------- them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the Credit Security in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, -------- ------- that the statements contained in any commitment letters delivered foregoing indemnity shall not apply to litigation commenced by the Company against the Lenders or the Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyAgent in a final nonappealable judgment or to the extent such claims, damages, liabilities and expenses result from a Lender's or the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the Agent's gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
General Indemnity. In addition to Without limiting any other rights which any such Person may have hereunder or under applicable law, the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and indemnify each of the Banks and any holder(s) Affected Parties, each of the Notestheir respective Affiliates, and the all successors, transferees, participants and assigns and all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agentforegoing (each, each of the Banks and such holder(s) (collectivelyan “Indemnified Party”), the "Indemnitees") harmless forthwith on demand, from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and reasonable related out-of-pocket costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable external attorneys’ fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or of them arising out of this Agreementor relating to the Transaction Documents, any the Obligations, the Collateral or the actions of the other Transaction Documents or any other agreementLoan Parties excluding, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, however: (i) Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as extent determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Excluded Taxes; and or (iii) recourse (except as otherwise specifically provided in a final nonappealable order. To this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables that were Eligible Receivables on the undertaking to indemnifydate such Receivables were purchased by the Borrower which are uncollectible on account of the insolvency, pay and hold harmless set forth bankruptcy or lack of creditworthiness of the related Obligor. Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(A) the creation of any Lien on the Receivables, or transfer by any Loan Party of any interest in the preceding sentence may be unenforceable because it is violative Collateral, other than as provided in the Transaction Documents;
(B) any representation or warranty made by any Originator or Loan Party (or any of its officers) under or in connection with any Transaction Document, any Monthly Report or any other information or report delivered by or on behalf of any law Originator or public policyLoan Party pursuant thereto, which shall have been false, incorrect or misleading in any respect when made or deemed made or delivered, as the case may be;
(C) the failure by any Loan Party to comply with the terms of any Transaction Document or any applicable law, rule or regulation with respect to any Receivable or the related Contract and/or Invoice, or the nonconformity of any Receivable or the related Contract and/or Invoice with any such applicable law, rule or regulation; Second Amended and Restated Credit and Security Agreement
(D) the failure to vest and maintain vested in the Borrower shall contribute a perfected ownership interest in all Collateral; or the maximum portion that it is permitted failure to pay vest and satisfy under applicable law maintain vested in the Administrative Agent, for the benefit of the Secured Parties, a valid and perfected first priority security interest in the Collateral, free and clear of any other Lien, other than a Lien arising solely as a result of an act of one of the Secured Parties, now or at any time thereafter;
(E) [Intentionally Omitted]
(F) any dispute, claim, offset or defense of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivables or the related Contract and/or Invoice not being a legal, valid and satisfaction binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the services related to such Receivable or the furnishing or failure to furnish such services (provided that this clause (F) shall not be applied to provide credit recourse in respect of the portion of the Outstanding Balance of any Receivable which has been discharged in the bankruptcy of the Obligor thereon);
(G) any matter described in Section 3.4;
(H) any failure of any Loan Party to perform its duties or obligations in accordance with the provisions of this Agreement or the other Transaction Documents to which it is a party;
(I) any claim of breach by any Originator or Loan Party of any related Contract and/or Invoice with respect to any Receivable;
(J) any Tax (but not including Excluded Taxes), all indemnified liabilities incurred interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the Indemnitees Administrative Agent’s security interest in the Collateral;
(K) the commingling of Collections of Receivables at any time with other funds;
(L) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Loan, the security interest in the Receivables and the Related Security or any other investigation, litigation or proceeding relating to the Borrower or any of them. The provisions the Originators in which any Indemnified Party becomes involved as a result of any of the undertakings transactions contemplated hereby or thereby;
(M) any products or professional liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract, Invoice or any Receivable; Second Amended and indemnification set out Restated Credit and Security Agreement
(N) any inability to litigate any claim against any Obligor in this Section 13.5 shall survive satisfaction respect of any Receivable as a result of such Obligor being immune from civil and payment commercial law and suit on the grounds of Borrower's Obligations sovereignty or otherwise from any legal action, suit or proceeding;
(O) the occurrence of any Event of Bankruptcy with respect to any Loan Party; or
(P) any loss incurred by any of the Secured Parties as a result of the inclusion in the Borrowing Base of Receivables owing from any single Obligor and its Affiliates who are Obligors which causes the termination aggregate Outstanding Balance of this Agreementall such Receivables to exceed the applicable Obligor Concentration Limit.
Appears in 1 contract
Sources: Credit and Security Agreement (Boston Scientific Corp)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Borrower shall pay, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent Agents, the Joint Lead Arrangers, the Lenders and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, counsel, agents and affiliates of the Agentattorneys-in-fact and Affiliates (each, each of the Banks and such holder(s) (collectively, the "Indemnitees"an “Indemnified Person”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, claims, costs, charges, expenses and disbursements or disbursements, joint or several, of any kind or nature whatsoever (including, without limitation, the including reasonable and documented fees and disbursements of counsel for such Indemnitees in connection with (and, if necessary, local and/or special counsel), except that any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees reimbursement obligation to (a) the Lenders shall be designated limited to (i) one counsel to such Indemnified Persons taken as a party thereto)whole, that (ii) in the case of any conflict of interest, additional counsel to each group of similarly situated Indemnified Persons, limited to one such additional counsel, and (iii) if necessary, one local counsel in each relevant jurisdiction and one special counsel in each relevant specialty (and, in the case of any conflict of interest, one additional local counsel and one additional special counsel, as applicable, to each group of similarly situated Indemnified Persons) and (b) an Agent shall be limited to one counsel and, if necessary, one local counsel in each relevant jurisdiction and one special counsel in each relevant specialty) and in each case subject to the provisions of Section 4.14 in respect of Taxes and Other Taxes) which may at any time be imposed on, incurred by or asserted against the Indemnitees, any such Indemnified Person in any manner way relating to or arising directly or indirectly out of the Acquisition, this AgreementAgreement or any other Credit Document, or the transactions contemplated hereby and thereby, or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to the exercise by any Joint Lead Arranger, Lender or Agent of any of its rights or remedies under any of the Credit Documents, and any investigation, litigation or proceeding (including any bankruptcy, insolvency, reorganization or other Transaction Documents similar proceeding or appellate proceeding) related to the Acquisition, this Agreement or any other agreement, document or instrument executed and delivered by Borrower Credit Document or any other Obligor in connection herewith or therewithLoan, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds thereof, whether or not any Indemnified Person is a party thereto, whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its shareholders or creditors, an Indemnified Person or any Loan hereunder other Person, or an Indemnified Person is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Section 5 are satisfied or the Acquisition or the other transactions contemplated by this Agreement are consummated (all the foregoing, collectively, the "indemnified liabilities"“Indemnified Liabilities”); provided that the Borrower shall have no obligation hereunder (1) to an Indemnitee hereunder any Indemnified Person with respect to indemnified liabilities Indemnified Liabilities arising from the gross negligence or willful misconduct of that Indemnitee such Indemnified Person as determined by a court of competent jurisdiction in a judgment that has become final nonappealable orderin that it is no longer subject to appeal, (2) except with respect to an Agent or its officers, directors, employees, counsel, agents or attorneys-in-fact as Indemnified Persons, for any losses, claims, damages, liabilities or expenses that (x) does not involve any act or omission of the Borrower or any of its affiliates and (y) is brought by an Indemnified Person against any other Indemnified Person (or any of its Related Parties) (other than in connection with any Indemnified Person acting in its capacity as a Joint Lead Arranger, the Administrative Agent, Collateral Agent, Argentine Paying Agent, Argentine Collateral Agent or any other agent or co-agent, in each case in their respective capacities as such), and (3) except with respect to an Agent or its officers, directors, employees, counsel, agents or attorneys-in-fact as Indemnified Persons, to any Indemnified Person with respect to Indemnified Liabilities resulting from a material breach of its Obligations hereunder. To The Borrower and the extent that Lenders agree not to assert any claim against any Indemnified Person, on any theory of liability, for consequential, indirect, special or punitive damages arising out of or otherwise relating to the undertaking Acquisition, this Agreement or any of the other Credit Documents or any of the transactions contemplated hereby or thereby or the actual or proposed use of the proceeds of the Loans. The Borrower shall not be liable for any settlement of any Proceeding (as defined below) effected without its consent (which consent shall not be unreasonably withheld), but if settled with its written consent, or if there is a final non-appealable judgment of a court of competent jurisdiction against an Indemnified Person in any such Proceeding, the Borrower agrees to indemnify, pay indemnify and hold harmless each Indemnified Person in the manner set forth in above. The Borrower shall not, without the preceding sentence may prior written consent of the affected Indemnified Person (which consent shall not be unenforceable because it is violative unreasonably withheld), effect any settlement of any law pending or public policythreatened Proceeding against such Indemnified Person in respect of which indemnity has been or could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person from all liability or claims that are the subject matter of such Proceeding and (ii) does not include any statement as to any admission of fault by or on behalf of such Indemnified Person. This Section 12.2(a) shall not apply with respect to Taxes other than any Taxes that represent losses, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or claims, damages, etc. arising from any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementnon-Tax claim.
Appears in 1 contract
Sources: Bridge Facility Senior Secured Bridge Loan Agreement (Pampa Energy Inc.)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any ----------------- such Person may have hereunder or under applicable law, whether or not the transactions contemplated hereby shall be consummated, Borrower AFS hereby agrees to indemnifyindemnify each of the Agent, pay the Investors, the Collateral Agent, the Custodian (if other than AFS), the Backup Servicer, the Borrower, the Trust Trustee and hold the Agent each other Affected Person and each of the Banks and any holder(s) of the Notestheir Affiliates, and the each of their respective successors, transferees, participants and assigns and all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agent, foregoing (each of the Banks and such holder(s) (collectivelyforegoing Persons being individually called an "Indemnified Party"), the "Indemnitees") harmless forthwith on demand, from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits----------------- losses, claims, costsliabilities and related costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively called "Indemnified Amounts") awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by any of them arising ------------------- out of or asserted against the Indemnitees, in any manner relating to any Transaction Document or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder transactions contemplated thereby or the use or intended use of proceeds therefrom by the Borrower, including (without limitation) in respect of the proceeds funding of any Loan hereunder Advance or in respect of any Transferred Receivable, excluding, however, (collectively, a) Indemnified Amounts to the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as --------- ------- extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party or its agent or subcontractor, (b) except as otherwise provided herein, non-payment by any Obligor of an amount due and payable with respect to a Transferred Receivable, (c) any loss in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative value of any law Financed Vehicle or public policyPermitted Investment due to changes in market conditions or for other reasons beyond the control of AFS or the Borrower or (d) any tax upon or measured by net income on any Indemnified Party. Without limiting the foregoing, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law but subject to the payment and satisfaction exclusions (a) through (d) above, AFS agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of all indemnified liabilities incurred or relating to:
(i) the breach of any representation or warranty made by the Indemnitees Borrower (or any of them. The provisions its officers) or AFS (in any capacity) or any Affiliate of AFS under or in connection with this Agreement or the undertakings and indemnification set out other Transaction Documents, any Servicer's Certificate, Borrowing Base Confirmation or any other information, report or certificate delivered by the Borrower or Servicer or AFS (in this Section 13.5 any capacity) or an Affiliate of AFS pursuant hereto or thereto, which shall survive satisfaction and payment have been false or incorrect in any material respect when made or deemed made;
(ii) the failure by the Borrower, a Seller or AFS (in any capacity) to comply in any material way with any applicable law, rule or regulation with respect to any Transferred Receivable or any Financed Vehicle, or the nonconformity of Borrower's Obligations and the termination of this Agreement.any Transferred Receivable with any such applicable law, rule or regulation;
Appears in 1 contract
Sources: Receivables Financing Agreement (Americredit Financial Services of Canada LTD)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated The Sellers hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notesseverally agree, and not jointly and severally, to indemnify the Purchaser and its officers, directors, employees, agents agents, stockholders, successors and affiliates of the Agent(individually, each of the Banks a “Purchaser Indemnified Party” and such holder(s) (collectively, the "Indemnitees"“Purchaser Indemnified Parties”) against, and to protect, save and keep harmless from the Purchaser Indemnified Parties from, and against any and to assume liability for, the payment of all other liabilitiesliabilities (including liabilities for Taxes), obligations, losses, damages, penalties, claims, actions, suits, judgments, suitssettlements, claims, out-of-pocket costs, expenses and disbursements (including reasonable costs of any investigation, and reasonable attorneys’, accountants’ and expert witnesses’ fees) of whatever kind or and nature whatsoever (includingcollectively, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto“Losses”), that may be imposed on, on or incurred by any Purchaser Indemnified Party as a consequence of or asserted against in connection with: (i) any misrepresentation, inaccuracy or breach of any representation or warranty of the Indemnitees, Company contained in Article III.B hereof; (ii) any breach of or failure by any of the Sellers to comply with or perform any agreement or covenant contained in this Agreement or in any manner relating to other document, agreement or arising out instrument executed in connection with the transactions contemplated hereby; (iii) any litigation or claim disclosed on Schedule 3.10 of this Agreement, ; (iv) any of the other Transaction Documents or any other agreement, document or instrument executed Taxes due and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered owing by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder Company with respect to indemnified liabilities arising from the gross negligence any period ending on or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law prior to the payment and satisfaction of all indemnified liabilities Closing Date, or (v) any costs incurred by the Indemnitees Purchaser pursuant to Section 7.3 or any of themby the Company following the Closing pursuant to Section 7.3. The provisions term “Losses” as used herein is not limited to matters asserted by third parties against an Indemnified Party but includes Losses incurred or sustained by an Indemnified Party in the absence of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementthird party claims.
Appears in 1 contract
Sources: Securities Purchase Agreement (Solomon Technologies Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether Whether or not the transactions contemplated hereby shall be are consummated, Borrower hereby agrees to the Companies shall indemnify, pay defend and hold the Agent Agent-Related Persons, and each Bank and each of the Banks and any holder(s) of the Notes, and the its respective officers, directors, employees, counsel, agents and affiliates of the Agentattorneys-in-fact (each, each of the Banks and such holder(s) (collectively, the an "IndemniteesIndemnified Person") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claimscosts, costscharges, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (includingincluding at any time following repayment of the Loans and the termination, without limitation, resignation or replacement of the reasonable fees and disbursements Agent or replacement of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may Bank) be imposed on, incurred by or asserted against the Indemnitees, any such Person in any manner way relating to or arising out of this AgreementAgreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of the other Transaction Documents foregoing, including with respect to any investigation, litigation or proceeding (including any other agreement, document Insolvency Proceeding or instrument executed and delivered by Borrower appellate proceeding) related to or any other Obligor in connection herewith arising out of this Agreement or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of thereof, whether or not any Loan hereunder Indemnified Person is a party thereto (all the foregoing, collectively, the "indemnified liabilitiesIndemnified Liabilities"); provided provided, that Borrower the Companies shall have no obligation hereunder to an Indemnitee hereunder any Indemnified Person with respect to indemnified liabilities arising Indemnified Liabilities resulting solely from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of themsuch Indemnified Person. The provisions of the undertakings and indemnification set out agreements in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementall other Obligations.
Appears in 1 contract
General Indemnity. In addition The Grantor must indemnify the Secured Party, each Authorised Representative and agent of the Secured Party, each Receiver of the Grantor or each Receiver appointed in relation to any property of the payment Grantor, each Attorney, and any other person appointed under a Finance Document or the Corporations Act by or on behalf of expenses pursuant the Secured Party (each an Indemnified Person) against, and must pay each Indemnified Person within three Business Days of demand the amount of, all Losses reasonably paid, suffered or incurred by the Indemnified Person in connection with:
(a) the occurrence of any Event of Default or Review Event;
(b) investigating any event which the Secured Party reasonably believes is an Event of Default or Review Event;
(c) the administration, and any actual or attempted preservation or enforcement, of any rights, powers, discretions and/or remedies under or properly corresponding to Section 13.3any Finance Document and/or any transaction contemplated by any of them;
(d) any information produced or approved by any of GFN, whether the Grantor, GFN Finance or not GFN USA Holdings under or in connection with the Finance Documents or the transactions they contemplate being or being alleged to be misleading or deceptive in any respect;
(e) acting or relying on any notice, consent, request, instruction, demand, approval or other communication or other document (including any of the foregoing given by fax or electronic communication (such as by email) or verbally (such as by telephone)) which it reasonably believes to be genuine, correct and appropriately authorised;
(f) any enquiry, investigation, subpoena (or similar order) or litigation with respect of any of GFN, the Grantor, GFN Finance or GFN USA Holdings, or with respect to the transactions contemplated hereby shall or financed under any Finance Document;
(g) a failure by any of GFN, the Grantor, GFN Finance or GFN USA Holdings to pay any amount due under a Finance Document on its due date or any financial accommodation provided to any of GFN, the Grantor, GFN Finance or GFN USA Holdings under a Finance Document being repaid or becoming due for repayment other than on its scheduled payment date, including Losses an Indemnified Person pays, suffers or incurs because of:
(i) the cancellation, termination, unwinding or alteration of any swap or other arrangement made by an Indemnified Person to fund the financial accommodation or other payment; or
(ii) any liquidation or re-employment of deposits or other funds acquired by any Indemnified Person to fund the financial accommodation or other payment;
(h) the Secured Property or anything done or omitted to be consummateddone in connection with the Secured Property;
(i) anything any of GFN, Borrower hereby agrees the Grantor, GFN Finance or GFN USA Holdings is required to indemnifydo or an Indemnified Person is permitted to do under any clause in any Finance Document relating or referring to any PPS Law, pay and hold the Agent and each or any action taken by an Indemnified Person under or in relation to any PPS Law, including any registration, or any response to an amendment demand or a request under section 275 of the Banks and PPSA;
(j) an Indemnified Person agreeing or providing an indemnity in favour of or reimbursing or agreeing to reimburse any holder(s) Receiver of any of the NotesGrantor, and the officers, directors, employees, agents and affiliates GFN Finance or GFN USA Holdings or any property of any of the AgentGrantor, each GFN Finance or GFN USA Holdings, any Attorney, any other person appointed under a Finance Document, and/or any other person appointed under the Corporations Act by or on behalf of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees Secured Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents Grantor, GFN Finance or GFN USA Holdings or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement property of any of the Banks to make the Loans hereunderGrantor, the agreement of Mercantile to issue the Letters of Credit hereunder GFN Finance or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.GFN USA Holdings;
Appears in 1 contract
Sources: Securities Purchase Agreement (General Finance CORP)
General Indemnity. In addition Subject to the payment of expenses pursuant to Section 13.3limitations contained in Sections 7.6.1 and 7.6.2, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, WWG and the Principals hereby agree, jointly and severally, to indemnify the Purchaser and its affiliates, stockholders, officers, directors, employees, agents agents, representatives and affiliates successors, permitted assignees of the AgentPurchaser and their affiliates (individually, each of the Banks a "Purchaser Indemnified Party" and such holder(s) (collectively, the "IndemniteesPurchaser Indemnified Parties") against, and to protect, save and keep harmless from the Purchaser Indemnified Parties from, and against to pay on behalf of or reimburse the Purchaser Indemnified Parties as and when incurred for, any and all other liabilitiesliabilities (including liabilities for Taxes), obligations, losses, damages, penalties, demands, claims, actions, suits, judgments, suitssettlements, claimspenalties, interest, out-of-pocket costs, expenses and disbursements (including reasonable costs of any investigation, and reasonable attorneys’, accountants' and expert witnesses' fees) of whatever kind or and nature whatsoever (includingcollectively, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto"Losses"), that may be imposed on, on or incurred by or asserted against the Indemniteesany Purchaser Indemnified Party as a consequence of, in any manner relating to connection with, incident to, resulting from or arising out of this Agreementor in any way related to or by virtue of: (a) any misrepresentation, inaccuracy or breach of any of the other Transaction Documents warranty or representation contained in Article III.B hereof or in any other agreement, document or instrument executed and certificate delivered by Borrower WWG or the Principals at the Closing; (b) any other Obligor in connection herewith action, demand, proceeding, investigation or therewith, claim by any third party (including any Governmental or Regulatory Authority) against or affecting any Purchaser Indemnified Party which may give rise to or evidence the statements contained in any commitment letters delivered by the Agent existence of or any of the Banks, the agreement relate to a misrepresentation or breach of any of the Banks representations and warranties of WWG or the Principals contained in Article III.B hereof or in any certificate delivered by WWG or the Principals at the Closing; (c) any breach or failure by WWG or the Principals to make comply with, perform or discharge any obligation, agreement or covenant by WWG or the Loans hereunderPrincipals contained in this Agreement; (d) any liability or obligation or any assertion against any Purchaser Indemnified Party, arising out of or relating, directly or indirectly, to any Excluded Asset or any Retained Liability (as such terms are defined in the NT Conveyance Document) or other liability arising, in whole or in part, out of the conduct of the business of WWG, TEAM, O-A, Pulse, the agreement Company or any Subsidiary prior to the Closing except for the Assumed Liabilities (as such term is defined in the NT Conveyance Document); (e) any litigation or claim disclosed on Schedule 3.10 to this Agreement; (f) any liability or obligation arising out of Mercantile or relating, directly or indirectly, to issue the Letters classification of Credit hereunder any individual performing services for any of WWG, TEAM, NT, O-A or Pulse (i) as an independent contractor, (ii) as a freelancer, (iii) as a consultant or (iv) in any other capacity other than as an employee; (g) any liability or obligation arising out of or relating, directly or indirectly, to any violation by WWG, TEAM, NT, O-A or Pulse, on or prior to the use or intended use Closing, of the proceeds Fair Labor Standards Act or any similar state or local wage and hour Law, Order, ordinance or regulation; and (h) the failure of any Loan hereunder (collectivelythe TEAM, the "indemnified liabilities"); provided that Borrower shall have no obligation Company or any Subsidiary to an Indemnitee hereunder with respect qualify to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent do business in any applicable jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementUnited States.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MDC Partners Inc)
General Indemnity. In addition The Grantor must indemnify the Secured Party, each Authorised Representative and agent of the Secured Party, each Receiver of the Grantor or each Receiver appointed in relation to any property of the payment Grantor, each Attorney, and any other person appointed under a Finance Document or the Corporations Act by or on behalf of expenses pursuant the Secured Party (each an Indemnified Person) against, and must pay each Indemnified Person within three Business Days of demand the amount of, all Losses reasonably paid, suffered or incurred by the Indemnified Person in connection with:
(a) the occurrence of any Event of Default or Review Event;
(b) investigating any event which the Secured Party reasonably believes is an Event of Default or Review Event;
(c) the administration, and any actual or attempted preservation or enforcement, of any rights, powers, discretions and/or remedies under or properly corresponding to Section 13.3any Finance Document and/or any transaction contemplated by any of them;
(d) any information produced or approved by any of GFN, whether the Grantor, GFN Holdings or not GFN Finance under or in connection with the Finance Documents or the transactions they contemplate being or being alleged to be misleading or deceptive in any respect;
(e) acting or relying on any notice, consent, request, instruction, demand, approval or other communication or other document (including any of the foregoing given by fax or electronic communication (such as by email) or verbally (such as by telephone)) which it reasonably believes to be genuine, correct and appropriately authorised;
(f) any enquiry, investigation, subpoena (or similar order) or litigation with respect of any of GFN, the Grantor, GFN Holdings or GFN Finance, or with respect to the transactions contemplated hereby shall or financed under any Finance Document;
(g) a failure by any of GFN, the Grantor, GFN Holdings or GFN Financeto pay any amount due under a Finance Document on its due date or any financial accommodation provided to any of GFN, the Grantor, GFN Holdings or GFN Finance under a Finance Document being repaid or becoming due for repayment other than on its scheduled payment date, including Losses an Indemnified Person pays, suffers or incurs because of:
(i) the cancellation, termination, unwinding or alteration of any swap or other arrangement made by an Indemnified Person to fund the financial accommodation or other payment; or
(ii) any liquidation or re-employment of deposits or other funds acquired by any Indemnified Person to fund the financial accommodation or other payment;
(h) the Secured Property or anything done or omitted to be consummateddone in connection with the Secured Property;
(i) anything any of GFN, Borrower hereby agrees the Grantor, GFN Holdings or GFN Financeis required to indemnifydo or an Indemnified Person is permitted to do under any clause in any Finance Document relating or referring to any PPS Law, pay and hold the Agent and each or any action taken by an Indemnified Person under or in relation to any PPS Law, including any registration, or any response to an amendment demand or a request under section 275 of the Banks and PPSA;
(j) an Indemnified Person agreeing or providing an indemnity in favour of or reimbursing or agreeing to reimburse any holder(s) Receiver of any of the NotesGrantor, and the officers, directors, employees, agents and affiliates GFN Holdings or GFN Finance or any property of any of the AgentGrantor, each GFN Holdings or GFN Finance, any Attorney, any other person appointed under a Finance Document, and/or any other person appointed under the Corporations Act by or on behalf of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees Secured Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents Grantor, GFN Holdings or GFN Finance or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement property of any of the Banks to make the Loans hereunderGrantor, the agreement of Mercantile to issue the Letters of Credit hereunder GFN Holdings or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.GFN Finance;
Appears in 1 contract
Sources: Securities Purchase Agreement (General Finance CORP)
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under Applicable Law, but subject to the payment of expenses pursuant to Section 13.3Sections 12.1(b) and 13.5, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby Seller agrees to indemnify, pay indemnify and hold harmless Administrative Agent, each Program Administrator, each Purchaser, each Purchaser Agent, each Enhancement Provider, each Liquidity Provider, each other Affected Party, any sub-agent of Administrative Agent, any Purchaser Agent, any assignee or successor of any of the Agent foregoing and each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall directors, members, managers, directors, employeesshareholders, officers, employees and attorneys or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses (including all filing fees), expenses including reasonable attorneys’, consultants’ and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable accountants’ fees and disbursements but excluding all Excluded Taxes other than any amounts reimbursable pursuant to Section 4.3 (all of counsel for such Indemnitees the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this AgreementTransaction Documents, any of the other Transaction Documents transactions contemplated thereby, or the ownership, maintenance or funding, directly or indirectly, of the Asset Interest (or any part thereof) or in respect of or related to any Seller Assets, including Pool Assets or any Related Assets or otherwise arising out of or relating to or resulting from the actions or inactions of Seller, any Originator, Servicer, CHS, Performance Guarantor or any other agreementparty to a Transaction Document; provided, document however, notwithstanding anything to the contrary in this Article XII, in all events there shall be excluded from the foregoing indemnification any damages, claims, losses, costs, expenses, liabilities or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder extent resulting from (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from x) the gross negligence or willful misconduct of that Indemnitee an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction in a final nonappealable orderor (y) the failure of an Account Debtor or Obligor to pay any sum due under its Pool Assets by reason of the financial or credit condition of such Account Debtor or Obligor (including the occurrence of an Insolvency Event with respect to the applicable Account Debtor or Obligor). To Without limiting the extent that the undertaking to foregoing, Seller shall indemnify, pay subject to the express limitations set forth in this Section 12.1, and hold harmless set forth each Indemnified Party for any and all Indemnified Amounts arising out of, relating to or resulting from:
(i) Any Pool Asset treated as or represented by Seller or Servicer to be an Eligible Receivable or Eligible Loan, as applicable, which is not at the applicable time an Eligible Receivable or Eligible Loan, as applicable;
(ii) the transfer by Seller or any Originator of any interest in any Pool Asset other than the transfer of any Pool Asset and Related Assets to Administrative Agent and any Purchaser pursuant to this Agreement, to Administrative Agent and to Seller pursuant to the Sale Agreement and the grant of a security interest to Administrative Agent pursuant to this Agreement and to Seller pursuant to the Sale Agreement;
(iii) any representation or warranty made by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) (or any of their respective officers or Affiliates) under or in connection with any Transaction Document, any Information Package or any other information or report delivered by or on behalf of Seller pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iv) the failure of Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to comply with the terms of any Transaction Document or any Applicable Law (including with respect to any Pool Asset or Related Assets), or the nonconformity of any Pool Asset or Related Assets with any such Applicable Law;
(v) the lack of an enforceable ownership interest, or a first priority perfected security interest, in the preceding sentence may be unenforceable because it is violative Pool Assets (and all Related Assets) against all Persons (including any bankruptcy trustee or similar Person);
(vi) the failure to file, or any delay in filing of, financing statements or other similar instruments or documents under the UCC of any law applicable jurisdiction or public policyunder any other Applicable Laws with respect to any Pool Asset whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vii) any dispute, Borrower shall contribute claim, offset or defense (other than discharge in bankruptcy) of the maximum portion that it is permitted to pay and satisfy under applicable law Account Debtor or Obligor, as applicable, to the payment of any Pool Asset in, or purporting to be in, the Asset Pool (including a defense based on such (x) Pool Receivable’s or the related Receivable Documentation’s or (y) Pool Loan’s or the related Loan Documents’ not being a legal, valid and satisfaction binding obligation of such Account Debtor or Obligor, as applicable, enforceable against it in accordance with its terms) or any other claim resulting from the sale of the merchandise or services related to such Pool Asset or the furnishing or failure to furnish such merchandise or services;
(viii) any suit or claim related to the Pool Assets or any Transaction Document (including any products liability or environmental liability claim arising out of or in connection with merchandise or services that are the subject of any Pool Asset to the extent not covered pursuant to Section 13.5), other than any such suit or claim that arises as a result of the failure of any Account Debtor or Obligor, as applicable, to pay any sum due under its Pool Asset by reason of the financial or credit condition of such Account Debtor or Obligor (including the occurrence of an Insolvency Event with respect to the applicable Account Debtor or Obligor);
(ix) the ownership, delivery, non-delivery, possession, design, construction, use, maintenance, transportation, performance (whether or not according to specifications), operation (including the failure to operate or faulty operation), condition, return, sale, repossession or other disposition or safety of any Related Assets (including claims for patent, trademark, or copyright infringement and claims for injury to persons or property, liability principles, or otherwise, and claims of breach of warranty, whether express or implied);
(x) the failure by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to notify any Account Debtor or Obligor of the assignment pursuant to the terms hereof of any Pool Asset to Administrative Agent for the benefit of Purchasers or the failure to require that payments (including any under the related insurance policies) be made directly to Administrative Agent for the benefit of Purchasers;
(xi) failure by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to comply with the “bulk sales” or analogous laws of any jurisdiction;
(xii) any Taxes (other than Excluded Taxes) imposed upon any Indemnified Party or upon or with respect to the Pool Assets, all indemnified liabilities incurred interest and penalties thereon or with respect thereto, and all costs and expenses related thereto or arising therefrom, including the fees and expenses of counsel in defending against the same;
(xiii) any loss arising, directly or indirectly, as a result of the imposition of sales or similar transfer type taxes or the failure by Seller, any Originator, Performance Guarantor or Servicer to timely collect and remit to the Indemnitees appropriate authority any such taxes;
(xiv) any commingling of any Collections by Seller, any Originator, Performance Guarantor or Servicer relating to the Pool Assets with any of their funds or the funds of any other Person;
(xv) any failure by Seller, CHS, any Originator, Performance Guarantor or any other party to a Transaction Document (other than such Indemnified Party) to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(xvi) the failure or delay to provide any Account Debtor or Obligor with an invoice or other evidence of indebtedness; or
(xvii) any inability of any Originator or Seller to assign any Pool Asset or Related Asset as contemplated under the Transaction Documents; or the violation or breach by any Originator, Seller, Servicer, Performance Guarantor or any of them. The provisions their respective Affiliates of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment any confidentiality provision, or of Borrower's Obligations and the termination any similar covenant of this Agreementnon-disclosure, or any other Indemnified Amount with respect to or resulting from any such violation or breach.
Appears in 1 contract
General Indemnity. In addition Borrower agrees upon demand to pay or reimburse Lenders for all liabilities, obligations and out-of-pocket expenses, including Lenders’ Expenses and reasonable fees and expenses of counsel for Lenders from time to time arising in connection with the payment enforcement or collection of expenses pursuant to Section 13.3sums due under the Loan Documents, whether and in connection with any amendment or not modification of the transactions contemplated hereby Loan Documents or any “work-out” in connection with the Loan Documents. Borrower shall be consummated, Borrower hereby agrees to indemnify, pay reimburse and hold the Agent Lenders, and each of the Banks and any holder(s) of the Notesits respective successors, and the assigns, agents, attorneys, officers, directors, employeesshareholders, servants, agents and affiliates of the Agent, employees (each of the Banks and such holder(s) (collectively, the "Indemnitees"an “Indemnified Person”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claimsdemands, costs, expenses and disbursements claims of any kind and nature (including claims relating to environmental discharge, cleanup or nature compliance), all costs and expenses whatsoever to the extent they may be incurred or suffered by such Indemnified Person in connection therewith (including, without limitation, the including reasonable attorneys’ fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoexpenses), that may be imposed onfines, incurred by penalties (and other charges of any applicable Governmental Authority), licensing fees relating to any item of Collateral, damage to or asserted against the Indemniteesloss of use of property (including consequential or special damages to third parties or damages to Borrower’s property), in or bodily injury to or death of any manner person (including any agent or employee of Borrower) (each, a “Claim”), directly or indirectly relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectivelythe Loans or otherwise, the "indemnified liabilities")falsity of any representation or warranty of Borrower or Borrower’s failure to comply with the terms of this Agreement or any other Loan Document. The foregoing indemnity shall cover, without limitation, (i) any Claim in connection with a design or other defect (latent or patent) in any item of equipment or product included in the Collateral, (ii) any Claim for infringement of any patent, copyright, trademark or other intellectual property right, (iii) any Claim resulting from the presence on or under or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials on the premises owned, occupied or leased by Borrower, including any Claims asserted or arising under any Environmental Law, (iv) any Claim for negligence or strict or absolute liability in tort, or (v) any Claim asserted as to or arising under any Account Control Agreement or any Landlord Agreement; provided that provided, however, Borrower shall have no obligation not indemnify Lenders for any liability to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent incurred as a result of Lenders’ gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction misconduct. Such indemnities shall continue in a final nonappealable order. To full force and effect, notwithstanding the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law expiration or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement. Upon Lender’s written demand, Borrower shall assume and diligently conduct, at its sole cost and expense, the entire defense of such Lender, each of its partners, and each of its respective, Agents, employees, directors, officers, shareholders, successors and assigns against any indemnified Claim described in this Section 10.3(a). Borrower shall not settle or compromise any Claim against or involving any Lender without first obtaining such Lender’s written consent thereto, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Venture Loan and Security Agreement (MAP Pharmaceuticals, Inc.)
General Indemnity. In addition 8.10.1 The Borrower hereby agrees at all times to pay promptly or, as the case may be, indemnify and hold the Facility Beneficiaries, KEXIM, K-Sure, GIEK and the Related Companies of any Facility Beneficiary, KEXIM, K-Sure, GIEK and each of them and their respective officers, directors, representatives, agents and employees (together the Indemnified Parties) harmless on a full indemnity basis from and against each and every Loss suffered or incurred by or imposed on any Indemnified Party related to or arising out of:
(a) the use of proceeds of the Facility;
(b) the execution and delivery of any commitment letter, engagement letter, fee letter, the Facility Documents or any other document connected therewith or the performance of the respective obligations thereunder, including without limitation environmental liabilities; or
(c) any claim, action, suit, investigation or proceeding relating to the payment of expenses pursuant to Section 13.3foregoing or the Security Parties, whether or not any Indemnified Party is a party thereto or target thereof, or the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the NotesIndemnified Parties’ roles in connection therewith, and will reimburse the officersIndemnified Parties, directorson demand, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) for all reasonable expenses (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable counsel fees and disbursements of counsel for such Indemnitees expenses) as they are incurred by the Indemnified Parties in connection with investigating, preparing for or defending any investigativesuch claim, administrative action, suit or judicial proceeding commenced (including any security holder actions or threatenedproceeding, inquiry or investigation), whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith with pending or therewiththreatened litigation in which the Security Parties are a party.
8.10.2 The Borrower will not, the statements contained in however, be responsible for any commitment letters delivered by the Agent claims, liabilities, losses, damages or any expenses of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided an Indemnified Party that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as are finally judicially determined by a court of competent jurisdiction to have resulted principally from the wilful misconduct or gross negligence by such Indemnified Party.
8.10.3 The foregoing shall be in a final nonappealable order. To the extent addition to any rights that the undertaking Indemnified Parties may have at common law or otherwise and shall extend upon the same terms to indemnify, pay and hold harmless set forth in inure to the preceding sentence may be unenforceable because it is violative benefit of any law affiliate, director, officer, employee, agent or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction controlling person of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementan Indemnified Party.
Appears in 1 contract
Sources: Loan Agreement
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether Whether or not any of the transactions contemplated hereby shall be consummated, Borrower the Indemnity Provider hereby assumes liability for and agrees to indemnifydefend, pay indemnify and hold the Agent and harmless each of the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless Indemnified Person on an After Tax Basis from and against any and all other liabilitiesClaims, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the Indemnitees, in any manner relating negligence of an Indemnified Person (but not to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising extent such Claims arise from the gross negligence or willful misconduct of that Indemnitee such Indemnified Person itself, as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking or pursuant to indemnify, pay and hold harmless arbitration as set forth in Section 12.8, as opposed to gross negligence or willful misconduct imputed to such Indemnified Person with regard to the preceding sentence may be unenforceable because it is violative acts or omissions of any Person which is not an agent or employee of such Indemnified Person; provided, no Indemnified Person shall be responsible for the acts or omissions of the Construction Agent regardless of any agency status) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort. Without limiting the generality of the foregoing, Environmental Claims shall include without limitation amounts paid in settlement of claims, all consultant and expert fees and expenses of any Indemnified Person incurred in connection with any investigation of site conditions, any abatement, cleanup, remediation, removal or restoration work, or liability for any damages or injuries of any Person or to land, air, water or other natural resources. If a written Claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of such proceeding), for any Claim, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or public policyregulation to be taken prior to the end of such period of thirty (30) days, Borrower such Indemnified Person shall contribute endeavor to, in such notice to the maximum portion Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that it the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of the Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be required to take any action and no Indemnity Provider shall be permitted to respond to any Claim in its own name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to pay and satisfy shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to pay an indemnity under applicable law this Section 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment and satisfaction is due, (E) in the case of all indemnified liabilities incurred a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnitees Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not 44 be required to contest any Claim in its name (or any that of them. The an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of the undertakings and indemnification set out in this Section 13.5 11.1, unless there shall survive satisfaction and payment of Borrower's Obligations have been a change in law (or interpretation thereof) and the termination Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of this Agreementindependent counsel selected by the Indemnified Person and reasonably acceptable to the Indemnity Provider stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
General Indemnity. In addition The Company (the "Indemnifying Party") shall (to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to fullest extent permitted by applicable laws) indemnify, pay defend and hold harmless the Agent Investor and each of the Banks and any holder(s) of the Notesits Affiliates, and the officers, directors, employees, agents and affiliates of the Agent, employees (each of the Banks and such holder(s) (collectively, the an "IndemniteesIndemnified Party") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suitsliabilities, claims, costsproceedings, Taxes, costs and expenses actually suffered or incurred by any such Indemnified Party (including the fees, disbursements and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements other charges of counsel for such Indemnitees reasonably incurred by the Indemnified Party in any action between the Indemnifying Party and the Indemnified Party or between the Indemnified Party and any third party, in connection with any investigativebreach as set forth below) (collectively, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to "Losses") resulting from or arising out of this Agreement, any breach by the Indemnifying Party of the other Transaction Documents any Company Warranty or any other agreement, document covenant or instrument executed and delivered by Borrower agreement in this Agreement or any other Obligor in connection herewith Transaction Document or therewith, resulting from or arising out of any claims against the statements contained in any commitment letters delivered by the Agent Company or any of other Group Member relating to any Tax liability that arose on or prior to the BanksCompletion Date, except to the agreement of any of extent that the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising Loss resulting from the gross negligence or willful wilfull misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderany Indemnified Party. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative The amount of any law or public policy, Borrower payment to any such Indemnified Party shall contribute the maximum portion that it is permitted be sufficient to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or make such Indemnified Party whole for any of them. The provisions diminution in value of the undertakings and indemnification set out Equity Securities held by it resulting from such breach. Any indemnity referred to in this Section 13.5 11 for breach of a Company Warranty shall survive satisfaction and payment be such as to place the Indemnified Party in the same position as it would have been in had there not been any breach of Borrower's Obligations and the termination Company Warranties under which the Indemnified Party is to be indemnified. In connection with the indemnification obligation of the Indemnifying Party as set forth above, the Indemnifying Party shall, upon presentation of appropriate invoices containing reasonable detail, reimburse each Indemnified Party for all such expenses as they are incurred by such Indemnified Party. The aggregate liability of the Indemnifying Party under this AgreementSection 11.1 in respect of any breach of the Company Warranty shall not exceed an amount equal to US$65,000,000.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (China Cord Blood Corp)
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Lenders and hold the Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Company of Section 2.6. In addition, the Company shall indemnify each of the Banks and any holder(s) of the NotesLender, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks Lenders' or the Agent's directors, officers and such holder(s) employees, and each Person, if any, who controls any Lender or the Agent (collectivelyeach Lender, the Agent and each of such directors, officers, employees and control Persons is referred to as an "IndemniteesIndemnified Party") and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their Affiliates or the Tender Offer, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof or the Tender Offer, (c) the existence or exercise of any security rights with respect to the Credit Security in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithincluding the Tender Offer; PROVIDED, HOWEVER, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply (i) to litigation commenced by the Company against the Lenders or the Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder Agent in a final nonappealable judgment or (collectivelyii) to the extent such claims, damages, liabilities and expenses result from a Lender's or the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the Agent's gross negligence or willful misconduct of that Indemnitee as determined or (iii) to litigation initiated by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking Merfin or its Affiliates with respect to indemnify, pay any prior banking relationship between any Lender and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementMerfin.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby CTA agrees to indemnify, pay pay, defend and hold the Agent and each of the Banks and any holder(s) of the NotesCity, and the officers, directorsits elected and appointed officials, employees, agents and affiliates of (individually an “Indemnitee,” and collectively the Agent, each of the Banks and such holder(s) (collectively, the "“Indemnitees"”) harmless from and against against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, and including without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, suffered, incurred by or asserted against the Indemnitees, Indemnitees in any manner relating to or arising out of:
(i) CTA’s failure to comply with any of the terms, covenants and conditions contained within this Agreement; or
(ii) CTA’s or any contractor’s failure to pay General Contractors, subcontractors or materialmen in connection with the TIF-Funded Improvements or any other Project improvement; or
(iii) the existence of any material misrepresentation or omission in this Agreement, any of the other Transaction Documents Redevelopment Plan or any other agreementdocument related to this Agreement that is the result of information supplied or omitted by CTA or its corporate authorities, document agents, representatives, employees, contractors or instrument executed and delivered by Borrower persons acting under the control or at the request of CTA; or
(iv) CTA’s failure to cure any misrepresentation in this Agreement or any other Obligor in connection herewith or therewithagreement relating hereto; provided, the statements contained in any commitment letters delivered by the Agent or any of the Bankshowever, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower CTA shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence wanton or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderIndemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower CTA shall contribute the maximum portion that it is permitted to pay and satisfy under the applicable law law, to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 13.01 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Sponsors, whether or not the transactions contemplated jointly and severally, hereby shall be consummated, Borrower hereby agrees agree to indemnify, pay exonerate, and hold the Agent Agent, the Security Agent, and the Paying Agent, and each of the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates employees of the Agent, each of the Banks Security Agent, and such holder(s) the Paying Agent (collectively, herein collectively called the "Indemnitees") free and harmless from and against any and all other actions, claims, ----------- losses, liabilities, obligations, losses, damages, penaltiesand expenses, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable legal fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoexpenses (herein collectively called the "Indemnified ----------- Liabilities"), that which may be imposed on, incurred by or asserted against the IndemniteesIndemnitees or ----------- any Indemnitee as a result of, in any manner relating to or arising out of of, or relating to, or in connection with:
(i) the failure by either Sponsor to comply with its respective obligations under this Agreement, the Sponsors' Guaranty, the Sponsors' Loan Agreement and the Revolving Loan Facility Agreement (subject, in the case of Indemnified Liabilities arising from Article ------- XIII, to the provisions of Section 13.6); ---- ------------
(ii) the inaccuracy by either Sponsor of any of its representations and warranties contained in any of the other Transaction Operative Documents to which it is a party as and when made or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, reaffirmed as the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder case may be (collectively, the "indemnified liabilities"); provided that Borrower AMD Inc. shall have no obligation liability under this Section 14.2 in ------------ respect of any inaccuracy by AMD Holding of the representation and warranty contained in Section 12.2 (ix)); and -----------------
(iii) any investigation, litigation, or proceeding related to an this Agreement or the consummation of the transactions contemplated hereby, whether or not any such Indemnitee hereunder with respect is a party thereto, and, to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the foregoing undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of for any law or public policyreason, Borrower shall contribute the Sponsors, jointly and severally, hereby agree to make the maximum portion that it is permitted to pay and satisfy under applicable law contribution to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions each of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementIndemnified Liabilities which is permissible under applicable law.
Appears in 1 contract
Sources: Sponsors' Support Agreement (Advanced Micro Devices Inc)
General Indemnity. In addition Borrower agrees upon demand to pay or reimburse Lenders for all liabilities, obligations and out-of-pocket expenses, including Lenders’ Expenses and reasonable fees and expenses of one common counsel for Lenders from time to time arising in connection with the payment enforcement or collection of expenses pursuant to Section 13.3sums due under the Loan Documents, whether and in connection with any amendment or not modification of the transactions contemplated hereby Loan Documents or any “work-out” in connection with the Loan Documents. Borrower shall be consummated, Borrower hereby agrees to indemnify, pay reimburse and hold the Agent Lenders, and each of the Banks and any holder(s) of the Notesits respective successors, and the assigns, agents, attorneys, officers, directors, employeesshareholders, servants, agents and affiliates of the Agent, employees (each of the Banks and such holder(s) (collectively, the "Indemnitees"an “Indemnified Person”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claimsdemands, costs, expenses and disbursements claims of any kind and nature (including claims relating to environmental discharge, cleanup or nature compliance), all costs and expenses whatsoever to the extent they may be incurred or suffered by such Indemnified Person in connection therewith (including, without limitation, the including reasonable attorneys’ fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoexpenses), that may be imposed onfines, incurred by penalties (and other charges of any applicable Governmental Authority), licensing fees relating to any item of Collateral, damage to or asserted against the Indemniteesloss of use of property (including consequential or special damages to third parties or damages to Borrower’s property), in or bodily injury to or death of any manner person (including any agent or employee of Borrower) (each, a “Claim”), directly or indirectly relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectivelythe Loans or otherwise, the "indemnified liabilities")falsity of any representation or warranty of Borrower or Borrower’s failure to comply with the terms of this Agreement or any other Loan Document. The foregoing indemnity shall cover, without limitation, (i) any Claim in connection with a design or other defect (latent or patent) in any item of equipment or product included in the Collateral, (ii) any Claim for infringement of any patent, copyright, trademark or other intellectual property right, (iii) any Claim resulting from the presence on or under or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials on the premises owned, occupied or leased by Borrower, including any Claims asserted or arising under any Environmental Law, (iv) any Claim for negligence or strict or absolute liability in tort, or (v) any Claim asserted as to or arising under any Account Control Agreement or any Landlord Agreement; provided that provided, however, Borrower shall have no obligation not indemnify any Indemnified Person for any liability to the extent incurred as a result of an Indemnitee hereunder with respect to indemnified liabilities arising from the Indemnified Person’s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction misconduct. Such indemnities shall continue in a final nonappealable order. To full force and effect, notwithstanding the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law expiration or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement. Upon Lender’s written demand, Borrower shall assume and diligently conduct, at its sole cost and expense, the entire defense of such Lender, each of its partners, and each of its respective, Agents, employees, directors, officers, shareholders, successors and assigns against any indemnified Claim described in this Section 10.3(a). Borrower shall not settle or compromise any Claim against or involving any Lender without first obtaining such Lender’s written consent thereto, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Loan and Security Agreement (MAP Pharmaceuticals, Inc.)
General Indemnity. In addition to the payment of expenses pursuant Company’s agreement to Section 13.3reimburse CIT for Out-of-Pocket Expenses, whether or not but without duplication, the transactions contemplated hereby shall be consummated, Borrower Company hereby agrees to indemnify, pay indemnify CIT and hold the Agent and each of the Banks and any holder(s) of the Notes, and the its officers, directors, employees, attorneys and agents (each, an “Indemnified Party”) from, and affiliates of the Agentto defend and hold each Indemnified Party harmless against, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other losses, liabilities, obligations, losses, damages, penaltiesclaims, actions, judgments, suits, claimsdamages, penalties, costs, fees, expenses and disbursements (including reasonable attorney’s fees) of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with which at any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that time may be imposed on, incurred by by, or asserted against against, any Indemnified Party:
(a) as a result of CIT’s exercise of (or failure to exercise) any of CIT’s rights and remedies hereunder, including, without limitation, (i) any sale or transfer of the IndemniteesCollateral, (ii) the preservation, repair, maintenance, preparation for sale or securing of any Collateral, and (iii) the defense of CIT’s interests in the Collateral (including the defense of claims brought by the Company, as a debtor-in-possession or otherwise, any manner secured or unsecured creditors of the Company, or any trustee or receiver in bankruptcy);
(b) as a result of any environmental pollution, hazardous material or environmental clean-up relating to the Real Estate, the Company’s operation and use of the Real Estate, and the Company’s off-site disposal practices;
(c) arising from or relating to (i) the maintenance and operation of any Depository Account, (ii) any Depository Account Control Agreements and (iii) any action taken (or failure to act) by any Indemnified Party with respect thereto;
(d) in connection with any regulatory investigation or proceeding by any regulatory authority or agency having jurisdiction over the Company; and
(e) otherwise relating to or arising out of the transactions contemplated by this AgreementFinancing Agreement and the other Loan Documents, or any action taken (or failure to act) by any Indemnified Party with respect thereto; provided that an Indemnified Party’s conduct in connection with the any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the foregoing matters does not constitute gross negligence or willful misconduct of that Indemnitee misconduct, as finally determined by a court of competent jurisdiction in a final nonappealable orderjurisdiction. To This indemnification shall survive the extent that the undertaking to indemnify, pay termination of this Financing Agreement and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any Obligations. CIT may from time to time establish Availability Reserves with respect to this indemnity as CIT may deem advisable in the exercise of them. The provisions of the undertakings its reasonable business judgment, and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the upon termination of this Financing Agreement, CIT may hold such reserves as cash reserves as security for this indemnity.
Appears in 1 contract
General Indemnity. In addition to The Borrower shall indemnify the payment Administrative Agent (and any sub- agent thereof) and each Lender, each Swap Lender, each Cash Management Lender, each Creditcard Lender and each Related Party of expenses pursuant to Section 13.3any of the foregoing Persons (each such Person being called an "Indemnitee") against, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the NotesIndemnitee harmless from, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilitieslosses, obligations, lossesclaims, damages, penaltiesliabilities and related expenses (including the fees, actions, judgments, suits, claims, costs, expenses charges and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoIndemnitee), that may be imposed on, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the IndemniteesBorrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in any manner relating to connection with, or arising out as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the other Transaction Documents transactions contemplated hereby or thereby, (ii) any Accommodation or the use or proposed use of the proceeds therefrom, or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other agreementtheory, document whether brought by a third party or instrument executed and delivered by the Borrower or any other Obligor in connection herewith or therewithLoan Party, the statements contained in and regardless of whether any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities")Indemnitee is a party thereto; provided that Borrower such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising resulted from the gross negligence or willful wilful misconduct of that such Indemnitee or (у) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementjurisdiction.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Indemnify, whether or not the transactions contemplated hereby shall be consummatedprotect, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks Lenders and any holder(s) of the Notestheir respective parents, and the officerssubsidiaries, directors, officers, employees, agents representatives, agents, successors, assigns, and affiliates of the Agent, each of the Banks and such holder(s) attorneys (collectively, the "Indemnitees"“Indemnified Parties”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses (including, without limitation, reasonable attorneys’ fees and legal expenses whether or not suit is brought and settlement costs), and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that which may be imposed on, incurred by by, or asserted against the IndemniteesIndemnified Parties, in any manner way relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithLoan, the statements contained in any commitment letters delivered by Collateral, the Agent Other Agreements, the Loan Documents or any of the Bankstransactions contemplated therein (EXPRESSLY INCLUDING THE ORDINARY NEGLIGENCE OF LENDERS AND AGENT, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder BUT EXCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LENDERS AND AGENT) (collectively, the "indemnified liabilities"“Indemnified Liabilities”), to the extent that any of the Indemnified Liabilities results, directly or indirectly, from any claim made or action, suit, or proceedings commenced by or on behalf of any Person other than the Indemnified Parties or Borrower; PROVIDED, HOWEVER, THAT ALTHOUGH EACH INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED FROM ITS OWN ORDINARY NEGLIGENCE, NO INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; provided further, however, that Borrower Agent and Lenders shall have no obligation to an Indemnitee hereunder not be indemnified against claims resulting from Agent’s or Lenders’ own actions taken with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of themAsset after Agent forecloses its Lien upon such Asset. The provisions of the and undertakings and indemnification set out forth in this Section 13.5 paragraph shall survive the satisfaction and payment of Borrower's the Obligations and the termination of this Agreement.
Appears in 1 contract
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under applicable Law, the Sellers agree to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay indemnify and hold harmless the Collateral Agent, each Administrative Agent, each Purchaser, each Purchaser Agent and each other Affected Party and each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall members, managers, directors, employeesshareholders, officers, employees and attorneys or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses including reasonable and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable documented attorneys’ fees and disbursements but excluding Taxes (indemnification for which shall be governed by Section 3.3(e)) (all of counsel for such Indemnitees the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this AgreementTransaction Documents, any of the other Transaction Documents transactions contemplated thereby, or the ownership, maintenance or funding, directly or indirectly, of any Asset Portfolio (or any other agreement, document part thereof) or instrument executed and delivered by Borrower otherwise arising out of or any other Obligor in connection herewith relating to or therewith, resulting from the statements contained in any commitment letters delivered by the Agent actions or any of the Banks, the agreement inactions of any of Seller, Servicer, Sprint Spectrum, any Originator or Sprint Corporation, provided, however, notwithstanding anything to the Banks contrary in this Article XII, excluding Indemnified Amounts solely to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder extent (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising x) resulting from the gross negligence or willful misconduct on the part of that Indemnitee such Indemnified Party as determined by a final non-appealable judgment by a court of competent jurisdiction in or (y) resulting from a claim brought by any Seller against an Indemnified Party for breach of such Indemnified Party’s obligations under any Transaction Document as determined by a final nonappealable ordernon-appealable judgment by a court of competent jurisdiction. To Without limiting the extent that foregoing, the undertaking to Sellers shall indemnify, pay subject to the express limitations set forth in this Section 12.1, and hold harmless set forth each Indemnified Party for any and all Indemnified Amounts arising out of, relating to or resulting from:
(i) the transfer by any Seller of any interest in any Pool Receivable other than the transfer of any Pool Receivable and Related Assets to the Collateral Agent on behalf of the Purchasers pursuant to this Agreement, the transfer by any Originator to any Seller pursuant to the Sale Agreement and the grant of a security interest to the Collateral Agent pursuant to this Agreement and to any Seller pursuant to the Sale Agreement;
(ii) any representation or warranty made by any Seller under or in connection with any Transaction Document, any Information Package or any other information or report delivered by or on behalf of any Seller pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iii) the failure of any Seller to comply with the terms of any Transaction Document or any applicable Law (including with respect to any Pool Receivable or Related Assets), or the nonconformity of any Pool Receivable or Related Assets with any such Law;
(iv) the lack of an enforceable ownership interest, or a first priority perfected security interest, in the preceding sentence may be unenforceable because it is violative Pool Receivables (and all Related Assets) in respect of any law Receivable Pool against all Persons (including any bankruptcy trustee or public policysimilar Person);
(v) the failure to file, Borrower shall contribute or any delay in filing of, financing statements or other similar instruments or documents under the maximum portion that it is permitted UCC of any applicable jurisdiction or under any other applicable Laws with respect to pay and satisfy under applicable law any Pool Receivable whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any suit or claim related to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees Pool Receivables or any Transaction Document (including any products liability or environmental liability claim arising out of them. The provisions or in connection with merchandise or services that are the subject of any Pool Receivable);
(vii) failure by any Seller to comply with the “bulk sales” or analogous Laws of any jurisdiction;
(viii) any loss arising, directly or indirectly, as a result of the undertakings imposition of sales or similar transfer type taxes or the failure by any Seller to timely collect and indemnification set out in this Section 13.5 shall survive satisfaction and payment remit to the appropriate authority any such taxes;
(ix) any commingling of Borrower's Obligations and any Collections by any Seller, any Originator, Sprint Corporation or the termination Servicer relating to the Pool Receivables with any of this Agreementtheir funds or the funds of any other Person;
(x) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness; or
(xi) any inability of any Originator or any Seller to assign any Receivable or Related Asset as contemplated under the Transaction Documents; or the violation or breach by any Seller of any confidentiality provision, or of any similar covenant of non-disclosure, with respect to any Contract, or any other Indemnified Amount with respect to or resulting from any such violation or breach.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant Subject to Section 13.38.3, whether or not from and after the transactions contemplated hereby shall be consummated, Borrower Effective Date:
(a) The Seller hereby agrees to indemnify, pay defend and hold harmless the Agent Buyer and each of the Banks its Affiliates and any holder(s) of the Notes, its and the officers, their directors, employeesmanagers, trustees, officers, agents and affiliates employees (the “Buyer Indemnified Parties”) from, against and in respect of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind Losses suffered or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating Buyer Indemnified Parties to or the extent arising out of this Agreement, or resulting from (i) any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement breach of any of the Banks to make the Loans hereunderrepresentations or warranties (in each case, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use when made) of the proceeds Seller in this Agreement or any other Transaction Document (including the Bill of Sale) and (ii) any breach of any Loan hereunder of the covenants or agreements of the Seller in this Agreement or any other Transaction Document (collectively, including the "indemnified liabilities"Bill of Sale); provided that Borrower the foregoing shall have no obligation exclude any indemnification to an Indemnitee hereunder with respect any Buyer Indemnified Party to indemnified liabilities arising the extent resulting from the gross negligence negligence, willful misconduct, or willful misconduct fraud of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking any Buyer Indemnified Party.
(b) The Buyer hereby agrees to indemnify, pay defend and hold harmless set forth the Seller and its Affiliates and its and their directors, officers, agents and employees (the “Seller Indemnified Parties”) from, against and in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction respect of all indemnified liabilities Losses suffered or incurred by the Indemnitees Seller Indemnified Parties to the extent arising out of or resulting from (i) any or breach of any of the representations or warranties (in each case, when made) of the Buyer in this Agreement or any other Transaction Document (including the Bill of them. The provisions Sale) or (ii) any breach of any of the undertakings and indemnification set out covenants or agreements of the Buyer in this Section 13.5 Agreement or any other Transaction Document (including the Bill of Sale); provided that the foregoing shall survive satisfaction and payment exclude any indemnification to any Seller Indemnified Party to the extent resulting from the gross negligence, willful misconduct, or fraud of Borrower's Obligations and the termination of this Agreementany Seller Indemnified Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (scPharmaceuticals Inc.)
General Indemnity. In addition to The Borrowers shall indemnify the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Lenders and hold the Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Borrowers of Section 2.5 and from and against all losses, costs and expenses, incurred in liquidating or employing deposits from third parties acquired or arranged, or in terminating or unwinding any contract entered into, or order to effect or fund the whole or any part of any drawing or any overdue amount hereunder incurred by any Lender as a consequence of any Default or the repayment of any amount due hereunder other than at the expiration of an Interest Period. In addition, the Borrowers shall indemnify each of the Banks and any holder(s) of the NotesLender, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks Lenders’ or the Agent’s directors, officers and such holder(s) employees, and each Person, if any, who controls any Lender or the Agent (collectivelyeach Lender, the "Indemnitees"Agent and each of such directors, officers, employees and control Persons is referred to as an “Indemnified Party”) and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses (including reasonable fees of and disbursements to counsel with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any kind Indemnified Party may incur or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party’s compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving any Borrower or any of its Subsidiaries, or any of their Affiliates, (b) any litigation or investigation involving any Borrower, any of its Subsidiaries or any of their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to any collateral for the Credit Obligations in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply to litigation commenced by the Borrowers against the Lenders or the Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Borrowers hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyAgent in a final nonappealable judgment or to the extent such claims, damages, liabilities and expenses result from a Lender’s or the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the Agent’s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Ch2m Hill Companies LTD)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3(a) Except as otherwise provided herein, whether or not the transactions contemplated hereby shall be consummated, Borrower Seller hereby agrees to indemnify, pay defend and hold the Agent harmless Buyer and each of the Banks and any holder(s) of the Notesits partners, and the owners, officers, directors, employeesemployees and agents from, agents against and affiliates in respect of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other losses, liabilities, obligations, losses, damages, penaltiescompensation, injuries, costs, claims, actions, suits, causes of action, judgments, suitsamounts paid in settlement, claimsinterest, costspenalties, assessments and expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees attorneys‘ fees) of every kind and disbursements of counsel for such Indemnitees character incurred or brought by a third party, resulting from, incurred in connection with any investigativewith, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of (i) any inaccuracy in or breach of any representation, warranty, or covenant, of Seller contained in or made pursuant to this Agreement or any inaccuracy in or breach of any representation, warranty, covenant, obligation or agreement of Seller contained in or made pursuant to any agreement delivered or entered into by Seller in connection with this Agreement, any and (ii) the gas purchased hereunder prior to its delivery at the Points of the other Transaction Documents or any other agreementDelivery; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks that Seller’s liability for failure to make the Loans hereunder, the agreement of Mercantile deliver gas shall be limited to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder Section 4.3.
(collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking b) Buyer hereby agrees to indemnify, pay defend and hold harmless set forth Seller and its partners, owners, officers, directors, employees and agents from, against and in the preceding sentence may be unenforceable because it is violative respect of any law and all losses, liabilities, damages, compensation, injuries, costs, claims, actions, suits, causes of action, judgments, amounts paid in settlement, interest, penalties, assessments and expenses (including, without limitation, reasonable attorneys‘ fees) of every kind and character incurred or public policybrought by a third party other than an affiliate resulting from, Borrower shall contribute the maximum portion that it is permitted incurred in connection with, or arising out of (i) any inaccuracy in or breach of any representation, warranty, or covenant, of Buyer contained in or made pursuant to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees this Agreement or any inaccuracy in or breach of them. The provisions any representation, warranty, covenant, obligation or agreement of Buyer contained in or made pursuant to any agreement delivered or entered into by Buyer in connection with this Agreement and (ii) the undertakings and indemnification set out in this gas purchased hereunder after its delivery at the Points of Delivery; provided, however, that Buyer‘s liability for failure to purchase gas shall be limited to Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement4.4.
Appears in 1 contract
Sources: Gas Purchase Agreement
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Company shall pay, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold each Bank, the Administrative Agent and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, counsel, agents and affiliates of the Agentattorneys-in-fact (each, each of the Banks and such holder(s) (collectively, the an "IndemniteesIndemnified Person") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, charges, expenses or disbursements (including reasonable fees and disbursements out-of-pocket expenses of counsel and the allocated cost of internal counsel) of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement and any other Loan Documents, or the transactions contemplated hereby and thereby, and with respect to any investigation, litigation or proceeding (includingincluding any Insolvency Proceeding or appellate proceeding) related to this Agreement or the Loans, without limitation, or the reasonable fees and disbursements use of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatenedthe proceeds thereof, whether or not such Indemnitees shall be designated any Indemnified Person is a party thereto)thereto (all the foregoing, that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilitiesIndemnified Liabilities"); provided provided, that Borrower the Company shall have no obligation hereunder to an Indemnitee hereunder any Indemnified Person with respect to indemnified liabilities Indemnified Liabilities (i) arising from the gross negligence or willful misconduct of that Indemnitee such Indemnified Person (ii) with respect to judicial proceedings commenced against such Indemnified Person by any holder of the debt or equity securities of such Indemnified Person based solely on the rights afforded such holder in its capacity as determined such, and (iii) with respect to judicial proceedings commenced solely against such Indemnified Person by a court of competent jurisdiction in a final nonappealable order. To another Bank, Assignee or Participant to the extent that based on a cause of action against such Indemnified Person and not the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees Company or any of themRestricted Subsidiary. The provisions of the undertakings and indemnification set out obligations in this Section 13.5 10.5 shall survive satisfaction and payment of Borrower's Obligations all other Obligations. The Company shall have the right to undertake, conduct and control through counsel of its own choosing (which counsel shall be acceptable to the Indemnified Persons acting reasonably) and at the sole expense of the Company, the conduct and settlement of any Indemnified Liabilities, and the termination Indemnified Person shall cooperate with the Company in connection therewith; provided that the Company shall permit the Indemnified Person to participate in such conduct and settlement through counsel chosen by the Indemnified Person, but the fees and expenses of such counsel shall be borne by the Indemnified Person. Notwithstanding the foregoing, the Indemnified Person shall have the right to employ its own counsel, and the reasonable fees and expenses of such counsel shall be at the Company's costs and expense if the interests of the Company and the Indemnified Person become adverse in any such claim or course of action; provided, however, the Company, in such event, shall only be liable for the reasonable legal expenses of one counsel for all of such Indemnified Persons. The Company shall not be liable for any settlement of any claim or action effected without its prior written consent, such consent not to be unreasonably withheld. All amounts owing under this AgreementSection 10.5 shall be paid within 30 days after demand.
Appears in 1 contract
Sources: Reducing Revolving Credit Agreement (Cinemark Usa Inc /Tx)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to 13.1.1 The Concessionaire will indemnify, pay defend, save and hold harmless the Agent MUNICIPAL CORPORATION / MUNICIPALITY and each of the Banks APUFIDC and any holder(s) of the Notes, and the its officers, directorsservants, employeesagents, agents Government Instrumentalities and affiliates of Government owned and/or controlled entities/enterprises, (the Agent, each of the Banks and such holder(s“Authority Indemnified Persons”) (collectively, the "Indemnitees") harmless from and against any and all other liabilitiessuits, obligations, losses, damages, penaltiesproceedings, actions, judgmentsdemands and claims from third parties for any loss, suitsdamage, claims, costs, expenses cost and disbursements expense of any whatever kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatenednature, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of any breach by the Concessionaire of any of its obligations under this Agreement or any related agreement or on account of any defect or deficiency in the provision of services by the Concessionaire to any User or from any negligence of the Concessionaire under contract or tort or on any other ground whatsoever, except to the extent that any such suits, proceedings, actions, demands and claims have arisen due to any negligent act or omission, or breach or default of this Agreement on the part of the MUNICIPAL CORPORATION / MUNICIPALITY Indemnified Persons.
13.1.2 The MUNICIPAL CORPORATION / MUNICIPALITY will indemnify, defend, save and hold harmless the Concessionaire against any and all suits, proceedings, actions, demands and claims from third parties for any loss, damage, cost and expense of whatever kind and nature arising out of (i) defect in title and/or the rights of the MUNICIPAL CORPORATION / MUNICIPALITY in the land comprised in the Site, and/or (ii) breach by the MUNICIPAL CORPORATION / MUNICIPALITY of any of its obligations under this Agreement or any related agreement, which materially and adversely affect the performance by the Concessionaire of its obligations under this Agreement, save and except that where any of the other Transaction Documents such claim, suit, proceeding, action, and/or demand has arisen due to a negligent act or any other agreementomission, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement breach of any of its obligations under any provision of this Agreement or any related agreement and/or breach of its statutory duty on the Banks to make part of the Loans hereunderConcessionaire, its subsidiaries, affiliates, contractors, servants or agents, the agreement of Mercantile to issue same shall be the Letters of Credit hereunder or the use or intended use liability of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementConcessionaire.
Appears in 1 contract
Sources: Concession Agreement
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby The Company agrees to indemnify, pay indemnify and hold the Agent and harmless each of the Banks and Indemnified Person against all or any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penaltiesclaims, actions, judgments, suitsliabilities, claimsawards, demands, investigations or proceedings (in each case whether or not successful, compromised or settled) (each a Claim) threatened, brought, alleged, asserted, established, made or instituted against or which otherwise involve any Indemnified Person in any jurisdiction by any person whatsoever (including any regulatory or government agency), and against all losses, damages, liabilities, costs, charges or expenses (including properly incurred fees, disbursements and disbursements expenses of legal counsel) and any kind Tax (other than any stamp duty, stamp duty reserve tax (or nature whatsoever related interest or penalties) in respect of which a payment has been made pursuant to the provisions of clause 8 of this Agreement, recoverable VAT incurred by the relevant Indemnified Person) (each a Loss) which any Indemnified Person may suffer or incur (including, without limitationbut not limited to, the reasonable fees and disbursements of counsel all Losses suffered or incurred in investigating, preparing for such Indemnitees or disputing, providing evidence in connection with or defending any investigative, administrative Claim and/or in establishing its right to be indemnified pursuant to this clause 10.1 or judicial proceeding commenced or threatened, to receive contribution pursuant to clause 12 and/or in seeking advice regarding any Claim (whether or not such Indemnitees Indemnified Person is an actual or potential party to such Claim or such Claim is defended or disputed successfully) or mitigating any Loss on its part or otherwise enforcing its rights under this Agreement or in any way related to or in connection with this indemnity, clause 12 or settling any Claim), which in each case shall be designated a party theretoadditional and without prejudice to any rights which an Indemnified Person may have at common law or otherwise, if the Claim or Loss arises, directly or indirectly, out of, or is attributable to, or connected with, anything done or omitted to be done by any person (including the relevant Indemnified Person) in connection with the Offer or the arrangements contemplated by the Offer Documents (or any amendment or supplement to any of them), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of , or this Agreement or any other agreement relating to the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and Offer, prior to or after the termination date of this Agreement.Agreement including, but not limited to:
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any such Person may have hereunder or under applicable law, whether or not the transactions contemplated hereby shall be consummated, Borrower Seller hereby agrees to indemnifyindemnify each of Purchaser, pay and hold the Agent Agent, the Banks, Enhancement Bank, SG, and each of the Banks their respective Affiliates, successors, transferees, participants and any holder(s) of the Notes, assigns and the all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agent, foregoing (each of the Banks and such holder(s) (collectivelyforegoing Persons being individually called an "Indemnified Party"), the "Indemnitees") harmless forthwith on demand, from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses including reasonable attorneys' fees and disbursements (all of the foregoing being collectively called "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom, including (without limitation) in respect of the ownership or funding of any kind Undivided Interest or nature whatsoever in respect of any Receivable or any Timeshare Loan, excluding, however, (a) Indemnified Amounts that have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, (b) non-payment by any Obligor of an amount due and payable with respect to a Receivable due to the credit of such Obligor (except as otherwise specifically provided in this Agreement), (c) any violation by any Indemnified Party of any Requirement of Law, or (d) the operations or administration of any Indemnified Party generally. Without limiting the foregoing, Seller agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in a Periodic Report to be true and correct, or the failure of any other information provided by Seller, Servicer or any Originator with respect to Receivables, Related Security, Collections or any Transaction Document to be true and correct;
(ii) the failure of any representation or warranty or statement made or deemed made by Seller (or any officer thereof) under or in connection with any Transaction Document to have been true and correct in all respects when made;
(iii) the failure by Seller to comply with any applicable law, rule or regulation with respect to any Receivable or the related Timeshare Loan, or the nonconformity of any Receivable or the related Timeshare Loan with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in Purchaser an undivided fractional ownership interest, to the extent of each Undivided Interest owned by it hereunder, in the Pool Receivables and Related Security in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of Purchaser or the Agent, any assignee from Purchaser or the Agent, whether existing at the time of any Purchase or Reinvestment of such Undivided Interest or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements, Mortgages, assignments of Mortgage or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables, Timeshare Loans or Related Security in the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or related Timeshare Loan in the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Timeshare Loan, Mortgage or Right-to-Use Agreement not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms); except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(vii) any failure of Sunterra, as Servicer or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIII, or any failure of Seller to perform its duties or obligations in accordance with the applicable provisions of the Transaction Documents;
(viii) any claim involving environmental liability that arises out of or relates to Vacation Interest Property that is the subject of any Receivable or the Related Security;
(ix) any tax (other than income tax) or governmental fee or charge, and all interest and penalties thereon or with respect thereto, and all reasonable out-of-pocket costs and expenses, including the reasonable fees and disbursements expenses of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted defending against the Indemniteessame, in any manner relating to or arising out of this Agreement, any which may arise by reason of the other Transaction Documents purchase or ownership of any Undivided Interest, or any other agreement, document interest in the Receivables or instrument executed and delivered by Borrower or in the related Vacation Interest; or
(x) any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by commingling of funds to which the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee Purchaser is entitled hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementother funds.
Appears in 1 contract
General Indemnity. In addition to Without limiting any other rights ---------------- which any such Person may have hereunder or under applicable law, the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower Company hereby agrees to indemnify, pay and hold the Agent and indemnify each of the Banks and any holder(s) Administrator, Lender, the Liquidity Banks, the other Program Support Providers, the Liquidity Agent, each of the Notestheir respective Affiliates, and the all successors, transferees, participants and assigns and all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agentforegoing (each an "Indemnified Party"), each of the Banks and such holder(s) (collectively----------------- forthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively referred to as "Indemnified ----------- Amounts") awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by any of them arising out ------- of or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or the ownership or funding of the Loans or in respect of any other agreement, document or instrument executed and delivered by Borrower Receivable or any other Obligor in connection herewith or therewithContract, excluding, however, (a) Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as --------- ------- extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct of such Indemnified Party, (b) recourse (except as otherwise specifically provided in a final nonappealable orderthis Agreement) for Defaulted Receivables, (c) taxes on net income, or (d) Indemnified Amounts resulting solely from acts or omissions of Servicer. To Without limiting the extent that foregoing, the undertaking to indemnify, pay and hold harmless set forth in Company shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the preceding sentence may be unenforceable because it is violative transfer by the Company of any law interest in any Receivable other than the grant of a security interest to Lender pursuant to Section 9.01; ------------
(ii) any representation or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred warranty made by the Indemnitees Company under or in connection with any Transaction Document, any Information Package or any of them. The provisions other information or report delivered by or on behalf of the undertakings Company pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made;
(iii) the failure by the Company to comply with any applicable law, rule or regulation (including truth in lending, fair credit billing, usury, fair credit reporting, equal credit opportunity, fair debt collection practices and indemnification set out privacy) with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.Lender
Appears in 1 contract
Sources: Receivables Financing Agreement (Anntaylor Stores Corp)
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not Lenders and the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Company of Section 2.5.5. In addition, the Company shall indemnify each Lender, the Agent, the Syndication Agent, the Documentation Agent, the Joint Lead Arrangers or the Co-Arranger each of the Lenders' or the Agent's directors, officers and employees, agents, attorneys, accountants, consultants and Affiliates and each Person, if any, who controls any Lender or the Agent (each Lender, the Agent and each of the Banks and any holder(s) of the Notessuch directors, and the officers, directors, employees, agents agents, attorneys, accountants, consultants and affiliates of the Agent, Affiliates and control Persons is referred to as an "Indemnified Party") and hold each of the Banks and such holder(s) (collectively, the "Indemnitees") them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the Credit Security in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply (i) to litigation commenced by the Company against the Lenders or the Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined Agent in a final nonappealable judgment by a court of competent jurisdiction or (ii) to the extent such claims, damages, liabilities and expenses are determined in a final final, nonappealable orderjudgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementTHE COMPANY EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.39.3, whether or not the transactions contemplated hereby shall be consummated, Borrower the Borrowers hereby agrees jointly and severally agree to indemnify, pay and hold the Agent and Agent, each of the Banks Lenders and any other holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each any of the Banks and such holder(s) them (collectively, the "“Indemnitees"”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower any of the Borrowers or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the BanksLenders, the agreement of any of the Banks Lenders’ agreements to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "“indemnified liabilities"”); provided that Borrower the Borrowers shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities liabilities, or for expenses under Section 9.3 relating to any such indemnified liabilities, arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderjurisdiction. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower the Borrowers shall contribute the maximum portion that it is they are permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 9.5 shall survive satisfaction and payment of Borrower's the Borrowers’ Obligations and the termination of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Virbac Corp)
General Indemnity. In addition to the payment of expenses ----------------- pursuant to Section 13.38.03, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to defend, indemnify, pay and hold the Administrative Agent and each of the Banks Bank and any holder(s) holders of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, Administrative Agent and each of the Banks Bank and such holder(s) holders (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costsdisbursements, costs and expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Administrative Agent or any of the BanksBank, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder under this Agreement or the use or intended use of the proceeds of any Loan hereunder under this Agreement (collectively, the "indemnified liabilities"); provided that (a) Borrower shall have no -------- obligation to an Indemnitee hereunder with respect to indemnified liabilities arising directly and solely resulting from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final final, nonappealable orderorder and (b) Borrower shall have no obligation to indemnify the Administrative Agent or any Bank with respect to disputes between the Administrative Agent and any Bank or with respect to disputes among the Banks. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 8.04 shall survive satisfaction and payment of the Borrower's Obligations and the termination of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Laclede Group Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.37.1 , whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees the Company and the Guarantor jointly and severally agree to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the NotesInvestor, and the its assignees and Affiliates and their respective officers, directors, employees, agents agents, consultants, auditors, Persons engaged by it to evaluate or monitor the Collateral, and affiliates attorneys of any of them (collectively called the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees"“Indemnities”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees Indemnitee shall be designated a party thereto), ) that may be imposed on, incurred by by, or asserted against the Indemniteesthat Indemnitee, in any manner relating to or arising out of this Agreement, any of Agreement or the other Transaction Documents or any Documents, the consummation of the transactions contemplated by this Agreement and the other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithTransaction Documents, the statements contained in any commitment letters term sheet delivered by the Agent or any of the BanksInvestor, the Investor’s agreement of any of the Banks to make the Loans any advance hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan advance or the exercise of any right or remedy hereunder or under the other Transaction Documents (collectively, the "indemnified liabilities"“Indemnified Liabilities”); provided that Borrower the Company shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities Indemnified Liabilities directly arising from the gross negligence or willful misconduct of that Indemnitee Indemnitee, as determined by a court of competent jurisdiction in by a final and nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementjudgment.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (American Standard Energy Corp.)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3A. Borrowers shall, whether or not the transactions contemplated hereby shall be consummatedat their sole cost and expense, Borrower hereby agrees to protect, defend, indemnify, pay release and hold the Agent and each of the Banks and any holder(s) of the Notesharmless Lender, and the officersits parents, subsidiaries, Affiliates, shareholders, partners, members, directors, officers, employees, agents trustees, representatives and affiliates Servicer and the heirs, legal representatives, successors and assigns of the Agentforegoing (collectively, each the “Indemnified Parties”) for, from and against (i) any and all claims for brokerage, leasing, finders or similar fees which may be made relating to any Property and the Secured Obligations, and (ii) any and all claims, suits, liabilities (including, without limitation, strict liabilities), administrative and judicial actions, proceedings, obligations, debts, damages, losses (including, without limitation, unrealized loss of the Banks value of any Property), costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement, and such holder(slitigation costs of whatever kind or nature that may be asserted against, imposed on or incurred by Lender (including, without limitation, Lender’s reasonable attorneys’ fees and all other reasonable costs of defense) (collectively, the "Indemnitees"“Losses”) imposed upon or incurred by or asserted against any Indemnified Parties (except to the extent same are directly caused by gross negligence or willful misconduct of any Indemnified Party) and directly or indirectly arising out of or in any way relating to any one or more of the following:
(i) the Loan, the Loan Documents or the Loan Application, or the ownership of the Note, any of the other Loan Documents or any interest therein or receipt of any Gross Revenue or arising in respect of the Accounts;
(ii) any untrue statement of any material fact contained in any information concerning any Borrower, any Guarantor, any Borrower Control Person, any Property, the other Collateral or the Loan prepared or approved in writing by such Borrower, such Guarantor or such Borrower Control Person, or the omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information or in light of the circumstances under which it/he (as applicable) were made not misleading;
(iii) any and all lawful action that may be taken and is taken by Lender, consistent with the terms hereof, in connection with the enforcement of the provisions of this Agreement, the Note or any of the other Loan Documents, whether or not suit is filed in connection with same, or in connection with any Borrower Control Person or any Affiliate of any Borrower Control Person becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding;
(iv) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about any Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(v) any use or nonuse of or condition in, on or about any Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(vi) any failure on the part of Borrowers to perform or be in compliance with any of the terms of this Agreement or any of the other Loan Documents;
(vii) performance of any labor or services or the furnishing of any materials or other property in respect of any Property or any part thereof pursuant to provisions of this Agreement;
(viii) the failure of any Borrowers to file timely with the Internal Revenue Service an accurate Form 1▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be required in connection with this Agreement;
(ix) any failure of any Property to be in compliance with any Legal Requirement or Insurance Requirement;
(x) the enforcement by any Indemnified Party of the provisions of this Section 5.1.4; and
(xi) any and all claims and demands whatsoever that may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease.
(A) shall become due and payable ten (10) days after written demand and shall bear interest at the Default Rate from the earlier of (i) the date any such that any such amount was paid by Lender, and (ii) the tenth (10th) day after demand until paid, and shall constitute part of the Secured Obligations.
B. Borrowers shall, at their sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of this Agreement, the Note, the Mortgages or any of the other liabilitiesLoan Documents (but excluding gross receipts, obligationsincome, lossesfranchise and capital stock taxes). Borrowers shall, damagesat their sole cost and expense, penaltiesreimburse the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of this Agreement, actionsthe Note, judgmentsthe Mortgage or any of the other Loan Documents (but excluding gross receipts, suitsincome, claimsfranchise and capital stock taxes).
C. Borrowers shall, costsat their sole cost and expense, expenses protect, defend, indemnify, release and disbursements of hold harmless the Indemnified Parties from and against any kind or nature whatsoever and all Losses (including, without limitation, excise taxes, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable discretion) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under the covenants of Borrower with respect to ERISA and employee benefits plans contained herein, including, without limitation, the breach by any Borrower of any representation or warranty set forth in Section 4.1.18 or the breach by any Borrower of any covenant contained in Section 5.1.15, Section 6.1.16 and/or Section 6.1.17. Borrowers shall, at their sole cost and expense, reimburse the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable discretion) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under the covenants of Borrower with respect to ERISA and employee benefits plans contained herein, including, without limitation, the breach by any Borrower of any representation or warranty set forth in Section 4.1.18 or the breach by any Borrower of any covenant contained in Section 5.1.15, Section 6.1.16 and/or Section 6.1.17.
D. Borrowers shall, at their sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under Borrowers’ covenants with respect to any Property. Borrowers shall, at their sole cost and expense reimburse the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under Borrowers’ covenants with respect to any Property.
E. Promptly after receipt by an Indemnified Party under this Section 5.1.4 of notice of the making of any claim or the commencement of any action, such Indemnified Party shall, if a claim in respect thereof is to be made by such Indemnified Party against Borrowers under this Section 5.1.4, notify Borrowers in writing, but the omission to so notify Borrowers shall not relieve Borrowers from any liability that Borrowers may have to any Indemnified Party under this Section 5.1.4 or otherwise unless and to the extent that Borrowers did not otherwise possess knowledge of such claim or action and such failure resulted in the forfeiture by Borrowers of substantial rights and defenses or a substantial increase in its obligations hereunder. In case any such claim is made or action is brought against any Indemnified Party and such Indemnified Party seeks or intends to seek indemnity from Borrowers, Borrowers shall be entitled to participate in, and, to the extent that Borrowers may wish, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party; and, upon receipt of notice from Borrowers to such Indemnified Party of Borrowers’ election so to assume the defense of such claim or action and only upon approval by the Indemnified Party of such counsel (such approval not to be unreasonably withheld, conditioned or delayed), Borrowers shall not be liable to such Indemnified Party under this Section 5.1.4 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof. Notwithstanding the preceding sentence, each Indemnified Party shall be entitled to employ counsel separate from such counsel for Borrowers and from any other party in such action if such Indemnified Party reasonably determines that a conflict of interest exists which makes representation by counsel chosen by Borrowers not advisable. In such event, but only in such event, Borrowers shall pay the reasonable fees and disbursements of such separate counsel, subject to reimbursement of such costs if the Indemnified Party requiring such separate counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or is found not such Indemnitees shall to be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law entitled to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.indemnity
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby Borrower shall be consummated, Borrower hereby agrees to indemnify, pay on an after-tax basis, defend and hold the harmless Agent and each of the Banks and any holder(s) of the NotesLender, and the their respective officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "IndemniteesIndemnified Persons") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigativeexpenses, administrative losses, claims, damages or judicial proceeding liabilities to which Agent, Lender or such Indemnified Persons may become subject (other than taxes, for which the provisions of Section 9(b) shall apply instead), insofar as such expenses, losses, claims, damages or liabilities (or actions or other proceedings commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, threatened in any manner relating to or arising respect thereof) arise out of the transactions referred to in this Agreement, Loan Agreement or arise from any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of the Advances, or in any Loan hereunder way arise out of activities of Borrower that violate environmental laws, and to reimburse Agent, Lender and each Indemnified Person, upon their demand, for any reasonable legal or other out-of-pocket expenses incurred in connection with investigating, defending or participating in any such loss, claim, damage, liability, or action or other proceeding, whether commenced or threatened (collectively, the "indemnified liabilities"whether or not Agent or Lender or any such person is a party to any action or proceeding out of which any such expense arises); provided that nothing in this Section shall obligate Borrower to pay the normal expenses of Lender in the administration of this Loan Agreement (or the issuance of any Equipment Note or the making of any Advance, in each case after the Closing Date) in the absence of pending or threatened litigation or other proceedings or the claims or threatened claims of others and then only to the extent arising therefrom. Notwithstanding the foregoing, Borrower shall have no obligation hereunder to an Indemnitee hereunder Indemnified Person with respect to indemnified liabilities arising which have resulted from the gross negligence negligence, bad faith or willful misconduct of that Indemnitee such Indemnified Person, as determined by a final and nonappealable judgment by a court of competent jurisdiction, or which have resulted from a claim brought by Borrower against an Indemnified Person for breach in bad faith of such Indemnified Person’s obligations hereunder in which Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction jurisdiction. In the case of an investigation, litigation or proceeding to which the indemnity in a final nonappealable order. To the extent that the undertaking to indemnifythis paragraph applies, pay and hold harmless set forth in the preceding sentence may such indemnity shall be unenforceable because it effective whether or not such investigation, litigation or proceeding is violative brought by Borrower, any of any law Borrower’s equity holders or public policycreditors, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees an Indemnified Person or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementother person or entity, whether or not an Indemnified Person is otherwise a party thereto.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Computer Sciences Corp)
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under Applicable Law, but subject to the payment of expenses pursuant to Section 13.3Sections 12.1(b) and 13.5, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby Seller agrees to indemnify, pay indemnify and hold harmless Administrative Agent, each Program Administrator, each Purchaser, each Purchaser Agent, each Enhancement Provider, each Liquidity Provider, each other Affected Party, any sub-agent of Administrative Agent, any Purchaser Agent, any assignee or successor of any of the Agent foregoing and each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall directors, members, managers, directors, employeesshareholders, officers, employees and attorneys or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses (including all filing fees), expenses including reasonable attorneys’, consultants’ and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable accountants’ fees and disbursements but excluding all Excluded Taxes other than any amounts reimbursable pursuant to Section 4.3 (all of counsel for such Indemnitees the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this AgreementTransaction Documents, any of the other Transaction Documents transactions contemplated thereby, or the ownership, maintenance or funding, directly or indirectly, of the Asset Interest (or any part thereof) or in respect of or related to any Seller Assets, including Pool Assets or any Related Assets or otherwise arising out of or relating to or resulting from the actions or inactions of Seller, any Originator, Servicer, CHS, Performance Guarantor or any other agreementparty to a Transaction Document; provided, document however, notwithstanding anything to the contrary in this Article XII, in all events there shall be excluded from the foregoing indemnification any damages, claims, losses, costs, expenses, liabilities or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder extent resulting from (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from x) the gross negligence or willful misconduct of that Indemnitee an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction in a final nonappealable orderor (y) the failure of an Account Debtor or Obligor to pay any sum due under its Pool Assets by reason of the financial or credit condition of such Account Debtor or Obligor (including the occurrence of an Insolvency Event with respect to the applicable Account Debtor or Obligor). To Without limiting the extent that the undertaking to foregoing, Seller shall indemnify, pay subject to the express limitations set forth in this Section 12.1, and hold harmless set forth each Indemnified Party for any and all Indemnified Amounts arising out of, relating to or resulting from:
i. Any Pool Asset treated as or represented by Seller or Servicer to be an Eligible Receivable or Eligible Loan, as applicable, which is not at the applicable time an Eligible Receivable or Eligible Loan, as applicable;
ii. the transfer by Seller or any Originator of any interest in any Pool Asset other than the transfer of any Pool Asset and Related Assets to Administrative Agent and any Purchaser pursuant to this Agreement, to Administrative Agent and to Seller pursuant to the Sale Agreement and the grant of a security interest to Administrative Agent pursuant to this Agreement and to Seller pursuant to the Sale Agreement;
iii. any representation or warranty made by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) (or any of their respective officers or Affiliates) under or in connection with any Transaction Document, any Information Package or any other information or report delivered by or on behalf of Seller pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
iv. the failure of Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to comply with the terms of any Transaction Document or any Applicable Law (including with respect to any Pool Asset or Related Assets), or the nonconformity of any Pool Asset or Related Assets with any such Applicable Law;
v. the lack of an enforceable ownership interest, or a first priority perfected security interest, in the preceding sentence may be unenforceable because it is violative Pool Assets (and all Related Assets) against all Persons (including any bankruptcy trustee or similar Person);
vi. the failure to file, or any delay in filing of, financing statements or other similar instruments or documents under the UCC of any law applicable jurisdiction or public policyunder any other Applicable Laws with respect to any Pool Asset whether at the time of any Purchase or Reinvestment or at any time thereafter;
vii. any dispute, Borrower shall contribute claim, offset or defense (other than discharge in bankruptcy) of the maximum portion that it is permitted to pay and satisfy under applicable law Account Debtor or Obligor, as applicable, to the payment of any Pool Asset in, or purporting to be in, the Asset Pool (including a defense based on such (x) Pool Receivable’s or the related Receivable Documentation’s or (y) Pool Loan’s or the related Loan Documents’ not being a legal, valid and satisfaction binding obligation of such Account Debtor or Obligor, as applicable, enforceable against it in accordance with its terms) or any other claim resulting from the sale of the merchandise or services related to such Pool Asset or the furnishing or failure to furnish such merchandise or services;
viii. any suit or claim related to the Pool Assets or any Transaction Document (including any products liability or environmental liability claim arising out of or in connection with merchandise or services that are the subject of any Pool Asset to the extent not covered pursuant to Section 13.5), other than any such suit or claim that arises as a result of the failure of any Account Debtor or Obligor, as applicable, to pay any sum due under its Pool Asset by reason of the financial or credit condition of such Account Debtor or Obligor (including the occurrence of an Insolvency Event with respect to the applicable Account Debtor or Obligor);
ix. the ownership, delivery, non-delivery, possession, design, construction, use, maintenance, transportation, performance (whether or not according to specifications), operation (including the failure to operate or faulty operation), condition, return, sale, repossession or other disposition or safety of any Related Assets (including claims for patent, trademark, or copyright infringement and claims for injury to persons or property, liability principles, or otherwise, and claims of breach of warranty, whether express or implied);
x. the failure by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to notify any Account Debtor or Obligor of the assignment pursuant to the terms hereof of any Pool Asset to Administrative Agent for the benefit of Purchasers or the failure to require that payments (including any under the related insurance policies) be made directly to Administrative Agent for the benefit of Purchasers;
xi. failure by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to comply with the “bulk sales” or analogous laws of any jurisdiction;
xii. any Taxes (other than Excluded Taxes) imposed upon any Indemnified Party or upon or with respect to the Pool Assets, all indemnified liabilities incurred interest and penalties thereon or with respect thereto, and all costs and expenses related thereto or arising therefrom, including the fees and expenses of counsel in defending against the same;
xiii. any loss arising, directly or indirectly, as a result of the imposition of sales or similar transfer type taxes or the failure by Seller, any Originator, Performance Guarantor or Servicer to timely collect and remit to the Indemnitees appropriate authority any such taxes;
xiv. any commingling of any Collections by Seller, any Originator, Performance Guarantor or Servicer relating to the Pool Assets with any of their funds or the funds of any other Person;
xv. any failure by Seller, CHS, any Originator, Performance Guarantor or any other party to a Transaction Document (other than such Indemnified Party) to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
xvi. the failure or delay to provide any Account Debtor or Obligor with an invoice or other evidence of indebtedness;
xvii. any inability of any Originator or Seller to assign any Pool Asset or Related Asset as contemplated under the Transaction Documents; or the violation or breach by any Originator, Seller, Servicer, Performance Guarantor or any of themtheir respective Affiliates of any confidentiality provision, or of any similar covenant of non-disclosure, or any other Indemnified Amount with respect to or resulting from any such violation or breach; or
xviii. The provisions any civil penalty or fine assessed by OFAC or any other Governmental Authority administering any Anti-Terrorism Law, Anti-Corruption Law or Sanctions, and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with defense thereof by, any Indemnified Party in connection with the Transaction Documents as a result of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment any action of Borrower's Obligations and the termination Seller, CHS, any Originator, Performance Guarantor or any of this Agreementtheir respective Affiliates.
Appears in 1 contract
Sources: Omnibus Amendment (CHS Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Company will indemnify each Managing Agent and each Lender, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks Managing Agents' and any holder(s) of the NotesLenders' respective directors, officers and employees, and the each Person, if any, who controls any Managing Agent or Lender (each Managing Agent and each Lender and each of their respective directors, officers, directors, employees, agents employees and affiliates of the Agent, control Persons is referred to as an "Indemnitee") and hold each of the Banks and such holder(s) (collectively, the "Indemnitees") them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnitee may consult in connection therewith and all expenses of litigation or preparation therefor) which any Indemnitee may incur or which may be asserted against any Indemnitee in connection with any investigativelitigation or investigation involving AFC, administrative the Company or judicial any of their respective Subsidiaries, or any officer, director or employee thereof (including the Managing Agents' or Lenders' compliance with or contest of any subpoena or other process issued against it in any proceeding commenced involving AFC, the Company or threatenedany of their respective Subsidiaries), whether or not such Indemnitees shall be designated a party are parties thereto), that may be imposed onor any penalties or other matters involving the transactions contemplated hereby or in connection with the existence or exercise of any rights with respect to the Credit Security in accordance with the provisions of the Credit Documents, incurred other than litigation commenced by or asserted the Company against the Indemnitees, in any manner relating to Lenders or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement Managing Agents which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is finally determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyManaging Agents and except to the extent such claims, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified damages, liabilities arising and expenses result from the a Managing Agent's or Lender's gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
General Indemnity. In addition The Grantor must indemnify the Secured Party, each Authorised Representative and agent of the Secured Party, each Receiver of the Grantor or each Receiver appointed in relation to any property of the payment Grantor, each Attorney, and any other person appointed under a Finance Document or the Corporations Act by or on behalf of expenses pursuant the Secured Party (each an Indemnified Person) against, and must pay each Indemnified Person within three Business Days of demand the amount of, all Losses reasonably paid, suffered or incurred by the Indemnified Person in connection with:
(a) the occurrence of any Event of Default or Review Event;
(b) investigating any event which the Secured Party reasonably believes is an Event of Default or Review Event;
(c) the administration, and any actual or attempted preservation or enforcement, of any rights, powers, discretions and/or remedies under or properly corresponding to Section 13.3any Finance Document and/or any transaction contemplated by any of them;
(d) any information produced or approved by any of GFN, whether the Grantor, GFN Holdings or not GFN USA Holdings under or in connection with the Finance Documents or the transactions they contemplate being or being alleged to be misleading or deceptive in any respect;
(e) acting or relying on any notice, consent, request, instruction, demand, approval or other communication or other document (including any of the foregoing given by fax or electronic communication (such as by email) or verbally (such as by telephone)) which it reasonably believes to be genuine, correct and appropriately authorised;
(f) any enquiry, investigation, subpoena (or similar order) or litigation with respect of any of GFN, the Grantor, GFN Holdings or GFN USA Holdings, or with respect to the transactions contemplated hereby shall or financed under any Finance Document;
(g) a failure by any of GFN, the Grantor, GFN Holdings or GFN USA Holdings to pay any amount due under a Finance Document on its due date or any financial accommodation provided to any of GFN, the Grantor, GFN Holdings or GFN USA Holdings under a Finance Document being repaid or becoming due for repayment other than on its scheduled payment date, including Losses an Indemnified Person pays, suffers or incurs because of:
(i) the cancellation, termination, unwinding or alteration of any swap or other arrangement made by an Indemnified Person to fund the financial accommodation or other payment; or
(ii) any liquidation or re-employment of deposits or other funds acquired by any Indemnified Person to fund the financial accommodation or other payment;
(h) the Secured Property or anything done or omitted to be consummateddone in connection with the Secured Property;
(i) anything any of GFN, Borrower hereby agrees the Grantor, GFN Holdings or GFN USA Holdings is required to indemnifydo or an Indemnified Person is permitted to do under any clause in any Finance Document relating or referring to any PPS Law, pay and hold the Agent and each or any action taken by an Indemnified Person under or in relation to any PPS Law, including any registration, or any response to an amendment demand or a request under section 275 of the Banks and PPSA;
(j) an Indemnified Person agreeing or providing an indemnity in favour of or reimbursing or agreeing to reimburse any holder(s) Receiver of any of the NotesGrantor, and the officers, directors, employees, agents and affiliates GFN Holdings or GFN USA Holdings or any property of any of the AgentGrantor, each GFN Holdings or GFN USA Holdings, any Attorney, any other person appointed under a Finance Document, and/or any other person appointed under the Corporations Act by or on behalf of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees Secured Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents Grantor, GFN Holdings or GFN USA Holdings or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement property of any of the Banks to make the Loans hereunderGrantor, the agreement of Mercantile to issue the Letters of Credit hereunder GFN Holdings or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.GFN USA Holdings;
Appears in 1 contract
Sources: Securities Purchase Agreement (General Finance CORP)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any such Person may have hereunder or under applicable law, whether or not the transactions contemplated hereby shall be consummated, Borrower Seller hereby agrees to indemnify, pay and hold the Agent and indemnify each of the Banks and any holder(s) Administrator, Purchaser, the Liquidity Banks, the Credit Bank, the Relationship Bank, the Liquidity Agent, each of the Notestheir respective Affiliates, and the all successors, transferees, participants and assigns and all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agentforegoing (each an "Indemnified Party"), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Asset Interest or in respect of any kind Receivable or nature whatsoever Account or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement) for any Receivable that is not paid as a result of credit related issues and (c) any tax based upon or measured by net income. Without limiting the foregoing, Seller shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the transfer by Seller of any interest in any Receivable other than the transfer of an Asset Interest to Purchaser pursuant to this Agreement and the grant of a security interest to Purchaser pursuant to Section 9.01;
(ii) any representation or warranty made by Seller or Servicer (or any of its officers) under or in connection with any Transaction Document, any Information Package or any other information or report delivered by or on behalf of Seller pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made;
(iii) the failure by Seller or Servicer to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Account or Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in Purchaser an undivided percentage ownership interest, to the extent of the Asset Interest, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Lien, other than a Lien arising solely as a result of an act of Purchaser, the Administrator or the Relationship Bank, whether existing at the time of any Purchase or Reinvestment of such Asset Interest or at any time thereafter, unless such failure is the result of the failure of Purchaser to execute any necessary financing statements;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable's or the related Contract's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vii) any failure of Seller or Servicer to perform its duties or obligations in accordance with the provisions of Article VIII;
(viii) any products liability claim arising out of or in connection with merchandise or services that are the subject of any Pool Receivable; or
(ix) any tax or governmental fee or charge (but not including taxes upon or measured by net income), all interest and penalties thereon or with respect thereto, and all out-of- pocket costs and expenses, including the reasonable fees and disbursements expenses of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted defending against the Indemniteessame, in any manner relating to or arising out of this Agreement, any which may arise by reason of the other Transaction Documents purchase or ownership of any Asset Interest, or any other agreement, document interest in the Pool Receivables or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or goods which secure any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementsuch Pool Receivables.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Charming Shoppes Inc)
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under applicable Law, the Seller agree to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay indemnify and hold harmless the Agent and Collateral Agent, the Administrative Agent, each Purchaser, each Purchaser Agent, each other Affected Party, each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall members, managers, directors, shareholders, officers, employees, and attorneys, or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities, expenses and related costs and expenses, including reasonable and documented attorneys’ fees and disbursements (subject to the limitations in respect of attorneys’ fees and disbursements set forth in the proviso to Section 13.6) but excluding Taxes (indemnification for which shall be governed by Section 3.3(e)) (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with this Agreement or the other Transaction Documents, any of the transactions contemplated hereby or thereby, or the ownership, maintenance or funding, directly or indirectly, of the Pool Receivables or Related Assets (or any portion thereof) or otherwise arising out of or relating to or resulting from the actions or inactions of any kind ADT Entity, the Servicer or nature whatsoever any of their respective Affiliates, provided, however, notwithstanding anything to the contrary in this Article XII, SK 28677 0004 8417431 v39 excluding Indemnified Amounts solely to the extent resulting from the fraud, bad faith, gross negligence or willful misconduct on the part of such Indemnified Party as determined by a final non-appealable judgment by a court of competent jurisdiction. Without limiting the generality of the foregoing but subject to the express limitations set forth in this Section 12.1, the Seller shall indemnify and hold harmless each Indemnified Party for any and all Indemnified Amounts arising out of, relating to, or resulting from:
(i) the transfer by the Seller of any interest in any Pool Receivable or Related Asset;
(ii) any representation or warranty made by the Seller under or in connection with any Transaction Document, any Purchase Request, any Information Package, or any other information or report delivered by or on behalf of the Seller pursuant hereto, which shall have been untrue, false, or incorrect when made or deemed made;
(iii) the failure of the Seller to comply with the terms of any Transaction Document, any applicable Law any Contract, any Pool Receivable, or Related Assets or the nonconformity of any Contract, Pool Receivable, or Related Assets with any such Law;
(iv) the failure to vest in favor of the Collateral Agent of an enforceable perfected ownership interest, or a first priority perfected security interest, in any Pool Receivables and all Related Assets against all Persons including any bankruptcy trustee or similar Person;
(v) the failure to file, or any delay in filing of, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or under any other applicable Laws with respect to any Pool Receivable whether at the time of any Purchase or at any time thereafter;
(vi) any suit or claim related to the Pool Receivables or any Transaction Document (including any products liability or environmental liability claim arising out of or in connection with merchandise or services that are the subject of any Pool Receivable);
(vii) failure by the Seller to comply with the “bulk sales” or analogous Laws of any jurisdiction;
(viii) any loss arising, directly or indirectly, as a result of the imposition of sales or similar transfer type taxes or the failure by the Seller to timely collect and remit to the appropriate authority any such taxes;
(ix) any commingling of any Collections of Pool Receivables with any other funds;
(x) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xi) any failure of the Seller, or ADT to assign any Pool Receivable or Related Asset as contemplated under the Transaction Documents; or the violation or breach by any ADT Entity of any confidentiality provision, or of any similar covenant of non-disclosure, with respect to any Contract, or any other Indemnified Amount payable hereunder with respect to or resulting from any such violation or breach;
(xii) the existence or assertion of any Adverse Claim in favor of any Governmental Authority or any other Person against any Omnibus Account, Collection Account, Lock-box, Lock-box Account, Collections, Receivable, Service Charge Receivable, or any related Contract or any portion or proceeds thereof, including, without limitation, as a result of any portion of any such Omnibus Account, Collection Account, Lock-box, Lock-box Account, Collections, Receivable, Service Charge Receivable, or any related Contract being attributable to governmental fees, surcharges, or taxes;
(xiii) any Pool Receivable failing to constitute an Eligible Receivable;
(xiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the reasonable fees related Contract not being a legal, valid and disbursements binding obligation of counsel for such Indemnitees Obligor enforceable against it in connection accordance with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoits terms), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, claim resulting from the statements contained in any commitment letters delivered by the Agent or any sale of the Banksmerchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Pool Receivable;
(xv) any investigation, the agreement of litigation or proceeding related to any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder Transaction Document or the use of proceeds, of Purchases or intended use the ownership of Pool Receivables or the Related Assets;
(xvi) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any Affiliate of the proceeds Seller in servicing, administering or collecting any Receivable;
(xvii) the facts or circumstances giving rise to any Event of Termination or Unmatured Event of Termination; or
(xviii) any inability to litigate any claim against any Obligor in respect of any Loan hereunder (collectivelyPool Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence suit or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderproceeding. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.SK 28677 0004 8417431 v39
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.38.03, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to defend, indemnify, pay and hold the Agent and each of the Banks Bank and any holder(s) holders of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, Agent and each of the Banks Bank and such holder(s) holders (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costsdisbursements, costs and expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements disb ursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the BanksBank, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder under this Agreement or the use or intended use of the proceeds of any Loan hereunder under this Agreement (collectively, the "indemnified liabilities"); provided that that
(a) Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising directly and solely resulting from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final final, nonappealable orderorder and (b) Borrower shall have no obligation to indemnify the Agent or any Bank with respect to disputes between the Agent and any Bank or with respect to disputes among the Banks. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 8.04 shall survive satisfaction and payment of the Borrower's Obligations and the termination of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Laclede Gas Co)
General Indemnity. In addition to and without limitation of the indemnity set forth in Section 9.1 and in addition to the payment of expenses pursuant to Section 13.310.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby each Loan Party agrees to indemnify, pay and hold the Agent and each of the Banks Lender and any holder(s) holder of the any Notes, and the officers, directors, employees, agents agents, and affiliates of the Agent, each of the Banks Lender and such holder(s) holders (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, reasonable costs, reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for any of such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), ) that may be imposed on, incurred by by, or asserted against the Indemniteesany Indemnitee, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents Related Agreement or any other agreement, document or instrument agreements executed and delivered by Borrower any Loan Party or any other Obligor in connection herewith or therewithherewith, the statements contained in any commitment letters letter delivered by the Agent or any of the BanksLender, the Lender's agreement of any of the Banks to make the Loans or to issue Letters of Credit hereunder, the agreement use or intended use of Mercantile to issue the any Letters of Credit hereunder Credit, or the use or intended use of the proceeds of any Loan of the Loans hereunder (collectively, the "indemnified liabilities"); provided that Borrower the Loan Parties shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable ordersuch Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the -102- 111 preceding sentence may be unenforceable because it is violative of violates any law or public policy, Borrower each Loan Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 9.2 shall survive satisfaction and payment of Borrower's Obligations the Liabilities and the termination of this Agreement.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Borrowers shall indemnify Agent (and any sub-agent thereof), whether or not the transactions contemplated hereby shall be consummatedeach Lender and Issuing Bank, Borrower hereby agrees to indemnifyand each other Indemnitee against, pay and hold the Agent and each of the Banks and any holder(s) of the NotesIndemnitee harmless from, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilitieslosses, obligations, lossesclaims, damages, penaltiesliabilities and related expenses (including the fees, actions, judgments, suits, claims, costs, expenses charges and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, Indemnitee) incurred by any Indemnitee or asserted against the Indemniteesany Indemnitee by any third party or by any Borrower or any other Obligor arising out of, in any manner relating to connection with, or arising out as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Agent Indemnitees only, the administration of this Agreement and the other Transaction Documents Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by Issuing Bank to honor a demand for payment under any Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of the Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Obligor, or any Environmental Liability related in any way to any Obligor, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other agreementtheory, document whether brought by a third party or instrument executed and delivered by any Borrower or any other Obligor Obligor, and regardless of whether any Indemnitee is a party thereto, in connection herewith all cases, whether or therewithnot caused by or arising, the statements contained in any commitment letters delivered by the Agent whole or any in part, out of the Bankscomparative, the agreement of any contributory or sole negligence of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities")Indemnitee; provided that Borrower such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising resulted from the gross negligence or willful misconduct of that such Indemnitee or (y) result from a claim brought by a Borrower or any other Obligor against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Obligor has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction in a final nonappealable orderjurisdiction. To If any Taxes (other than Excluded Taxes) shall be payable by any party due to the extent that execution, delivery, issuance or recording of any Loan Documents, or the undertaking to indemnifycreation or repayment of any Obligations, Borrowers shall pay (and shall promptly reimburse Agent and Lenders for their payment of) all such Taxes, including any interest and penalties thereon, and will indemnify and hold harmless set forth Indemnitees against all liability in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementconnection therewith.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under applicable Law, but subject to the payment of expenses pursuant to Section 13.3Sections 12.1(b) and 13.5, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby Seller agrees to indemnify, pay indemnify and hold harmless Administrative Agent, each Program Administrator, each Purchaser, each Purchaser Agent, each Enhancement Provider, each Liquidity Provider, each other Affected Party, any sub-agent of Administrative Agent or any Purchaser Agent, any assignee or successor of any of the Agent foregoing and each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall directors, members, managers, directors, employeesshareholders, officers, employees and attorneys or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses (including all filing fees), expenses including reasonable attorneys’, consultants’ and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable accountants’ fees and disbursements but excluding all Excluded Taxes other than any amounts reimbursable pursuant to Section 3.3, (all of counsel for such Indemnitees the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this AgreementTransaction Documents, any of the other Transaction Documents transactions contemplated thereby, or the ownership, maintenance or funding, directly or indirectly, of the Asset Interest (or any part thereof) or in respect of or related to any Collateral, including Pool Receivables or any Related Assets or otherwise arising out of or relating to or in connection with the actions or inactions of Seller, Master Servicer or any other agreementparty to a Transaction Document (other than such Indemnified Party), document or instrument executed and delivered provided, however, notwithstanding anything to the contrary in this Article XII, excluding Indemnified Amounts solely to the extent (x) determined by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any a court of the Banks, the agreement of any of the Banks competent jurisdiction to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising resulted from the gross negligence or willful misconduct on the part of that Indemnitee such Indemnified Party as determined by a final non-appealable judgment by a court of competent jurisdiction in or (y) they constitute recourse with respect to a final nonappealable orderPool Receivable and the Related Assets by reason of bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. To Without limiting the extent that the undertaking to foregoing, Seller shall indemnify, pay subject to the express limitations set forth in this Section 12.1, and hold harmless set forth each Indemnified Party for any and all Indemnified Amounts arising out of, relating to or in connection with:
(i) the transfer by Seller or any Originator of any interest in any Pool Receivable other than the transfer of any Pool Receivable and Related Assets to Administrative Agent and any Purchaser pursuant to this Agreement, to Administrative Agent and to Seller pursuant to the Sale Agreement and the grant of a security interest to Administrative Agent pursuant to this Agreement and to Seller pursuant to the Sale Agreement;
(ii) any representation or warranty made by Seller, Master Servicer or any other party to a Transaction Document (other than such Indemnified Party) (or any of their respective officers or Affiliates) under or in connection with any Transaction Document, any Information Package or any other information or report delivered by or on behalf of Seller pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iii) the failure of Seller, Master Servicer or any other party to a Transaction Document (other than such Indemnified Party) to comply with the terms of any Transaction Document or any applicable Law (including with respect to any Pool Receivable or Related Assets), or the nonconformity of any Pool Receivable or Related Assets or any servicing thereof with any such Law;
(iv) the lack of an enforceable ownership interest, or a first priority perfected security interest, in the preceding sentence may be unenforceable because it is violative Pool Receivables (and all Related Assets) against all Persons (including any bankruptcy trustee or similar Person);
(v) the failure to file, or any delay in filing of (other than as a result of actions or omissions of the Administrative Agent or Purchaser Group), financing statements or other similar instruments or documents under the UCC of any law applicable jurisdiction or public policyunder any other applicable Laws with respect to any Pool Receivable whether at the time of any Purchase or Reinvestment or at any time thereafter other than as a result of the Administrative Agent or the Purchaser Group;
(vi) any dispute, Borrower shall contribute claim, offset or defense (other than discharge in bankruptcy) of the maximum portion that it is permitted to pay and satisfy under applicable law Obligor to the payment of any Pool Receivable in, or purporting to be in, the Receivables Pool (including a defense based on such Pool Receivable’s or the related Contract’s not being a legal, valid and satisfaction binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the merchandise or services related to such Pool Receivable or the furnishing or failure to furnish such merchandise or services or the servicing or collection of such Receivable;
(vii) any suit or claim related to the Pool Receivables, Related Assets or any Transaction Document (including any products liability or environmental liability claim arising out of or in connection with merchandise or services that are the subject of any Pool Receivable or Related Asset);
(viii) the ownership, delivery, non-delivery, possession, design, construction, use, maintenance, transportation, performance (whether or not according to specifications), operation (including the failure to operate or faulty operation), condition, return, sale, repossession or other disposition or safety of any Related Assets (including claims for patent, trademark, or copyright infringement and claims for injury to persons or property, liability principles, or otherwise, and claims of breach of warranty, whether express or implied);
(ix) the failure by Seller, Master Servicer or any other party to a Transaction Document (other than such Indemnified Party) to notify any Obligor of the assignment pursuant to the terms hereof of any Pool Receivable or Related Assets to Administrative Agent for the benefit of Purchasers or the failure to require that payments (including any under the related insurance policies) be made directly to Administrative Agent for the benefit of Purchasers;
(x) failure by Seller, Master Servicer or any other party to a Transaction Document (other than such Indemnified Party) to comply with the “bulk sales” or analogous Laws of any jurisdiction;
(xi) any Taxes (other than Excluded Taxes) imposed upon any Indemnified Party or upon or with respect to the Pool Receivables or Related Assets, all indemnified liabilities incurred interest and penalties thereon or with respect thereto, and all costs and expenses related thereto or arising therefrom, including the fees and expenses of counsel in defending against the same;
(xii) any loss arising, directly or indirectly, as a result of the imposition of sales or similar transfer type taxes or the failure by Seller, any Originator, Performance Guarantor or Master Servicer to timely collect and remit to the Indemnitees appropriate authority any such taxes;
(xiii) any commingling of any Collections by Seller, any Originator, Performance Guarantor or Master Servicer relating to the Pool Receivables or Related Assets with any of their funds or the funds of any other Person (including the commingling of Collections of Pool Receivables with Excluded Collections or collections on Unsold Receivables);
(xiv) any failure by Seller, any Originator, Performance Guarantor or Master Servicer to perform its duties or obligations in accordance with the provisions of the Transaction Documents and the related Contracts;
(xv) any failure by Seller, any Originator, Master Servicer or any of them. The provisions their Affiliates to obtain consent from any Obligor prior to the assignment of any Pool Receivable and Related Assets pursuant to the terms of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment Transaction Documents;
(xvi) any breach of Borrower's Obligations and any Contract as a result of the termination of sale or contribution thereof or any Receivables related thereto pursuant to the Sale Agreement or this Agreement;
(xvii) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness; or
(xviii) any inability of any Originator or Seller to assign any Receivable or Related Asset as contemplated under the Transaction Documents; or the violation or breach by any Originator, Seller, Master Servicer, Performance Guarantor or any of their respective Affiliates of any confidentiality provision, or of any similar covenant of non-disclosure, with respect to any Contract, or any other Indemnified Amount with respect to or resulting from any such violation or breach.
Appears in 1 contract
Sources: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.)
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under applicable Law, the Sellers agree to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay indemnify and hold harmless the Agent and Collateral Agent, the Administrative Agent, each Purchaser, each Purchaser Agent, each other Affected Party, each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall members, managers, directors, shareholders, officers, employees, and attorneys, or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities, expenses and disbursements of any kind or nature whatsoever (includingrelated costs and expenses, without limitation, the including reasonable and documented attorneys’ fees and disbursements but excluding Taxes (indemnification for which shall be governed by Section 3.3(e)) (all of counsel for such Indemnitees the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with the Transaction Documents, any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this ISC Dealer Agreement, any of the other Transaction Documents transactions contemplated thereby, the assignment or transfer of any ISC Dealer Contract or ISC Dealer Receivable from any ISC Dealer to an Originator, or the ownership, maintenance or funding, directly or indirectly, of any Asset Portfolio (or any other agreement, document part thereof) or instrument executed and delivered by Borrower otherwise arising out of or any other Obligor in connection herewith relating to or therewith, resulting from the statements contained in any commitment letters delivered by the Agent actions or any of the Banks, the agreement inactions of any of Seller, Servicer, Sprint Spectrum, any Originator, or Sprint Corporation, provided, however, notwithstanding anything to the Banks contrary in this Article XII, excluding Indemnified Amounts solely to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder extent (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising x) resulting from the gross negligence or willful misconduct on the part of that Indemnitee such Indemnified Party as determined by a final non-appealable judgment by a court of competent jurisdiction in or (y) resulting from a claim brought by any Seller against an Indemnified Party for breach of such Indemnified Party’s obligations under any Transaction Document as determined by a final nonappealable ordernon-appealable judgment by a court of competent jurisdiction. To Without limiting the extent that foregoing, the undertaking to Sellers shall indemnify, pay subject to the express limitations set forth in this Section 12.1, and hold harmless set forth each Indemnified Party for any and all Indemnified Amounts arising out of, relating to, or resulting from:
(i) the transfer by any Seller of any interest in any Lease Device or Lease Contract to any Person, or of any Pool Receivable or Related Asset, or the assignment or transfer by any ISC Dealer of any ISC Dealer Contract, any interest in any ISC Dealer Receivable or Related Asset, in each case other than the transfer or pledge of any Lease Contract, Pool Receivable, and Related Assets to the Collateral Agent on behalf of the Purchasers pursuant to this Agreement, the assignment or transfer by any ISC Dealer to an Originator, the transfer by any Originator to any Seller pursuant to the Sale Agreement, and the grant of a security interest to the Collateral Agent pursuant to this Agreement, to any Originator by an ISC Dealer in connection with the assignment or transfer of any ISC Dealer Contract, ISC Dealer Receivables, and Related Assets, and to any Seller pursuant to the Sale Agreement;
(ii) any representation or warranty made by any Seller or ISC Dealer under or in connection with any Transaction Document, ISC Dealer Agreement, any Information Package, or any other information or report delivered by or on behalf of any Seller pursuant hereto, or any ISC Dealer Agreement, which shall have been untrue, false, or incorrect when made or deemed made;
(iii) the failure of any Seller or any ISC Dealer to comply with the terms of any Transaction Document, any ISC Dealer Agreement or any applicable Law (including with respect to any Lease Device, Lease Contract, Pool Receivable, or Related Assets), or the nonconformity of any Lease Device, Lease Contract, Pool Receivable, or Related Assets with any such Law;
(iv) the lack of an enforceable ownership interest, or a first priority perfected security interest, in the preceding sentence may be unenforceable because it is violative Lease Devices, Lease Contracts, Pool Receivables (and all Related Assets) in respect of any law Receivable Pool against all Persons (including any bankruptcy trustee or public policysimilar Person);
(v) the failure to file, Borrower shall contribute or any delay in filing of, financing statements or other similar instruments or documents under the maximum portion that it is permitted UCC of any applicable jurisdiction or under any other applicable Laws with respect to pay and satisfy under applicable law any Pool Receivable whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any suit or claim related to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees Pool Receivables or any Transaction Document or ISC Dealer Agreement (including any products liability or environmental liability claim arising out of them. The provisions or in connection with merchandise or services that are the subject of any Pool Receivable);
(vii) failure by any Seller to comply with the “bulk sales” or analogous Laws of any jurisdiction;
(viii) any loss arising, directly or indirectly, as a result of the undertakings imposition of sales or similar transfer type taxes or the failure by any Seller to timely collect and indemnification set out remit to the appropriate authority any such taxes;
(ix) any commingling of any Collections by any Seller, any Originator, Sprint Corporation, or the Servicer relating to the Pool Receivables with any of their funds or the funds of any other Person;
(x) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xi) any inability of any Originator, any Seller, or any ISC Dealer to assign any Lease Device, Lease Contract, Pool Receivable, or Related Asset as contemplated under the Transaction Documents or any ISC Dealer Agreement; or the violation or breach by any Seller, Originator, or ISC Dealer of any confidentiality provision, or of any similar covenant of non-disclosure, with respect to any Contract, or any other Indemnified Amount with respect to or resulting from any such violation or breach;
(xii) the existence or assertion of any Adverse Claim in this Section 13.5 shall survive satisfaction and payment favor of Borrower's Obligations and any Governmental Authority against any Receivable or any portion or proceeds thereof, including, without limitation, as a result of any portion of such Receivable being attributable to governmental fees, surcharges, or taxes;
(xiii) the failure by any Originator or any Seller to comply with any applicable Law related to the Lease Upgrade Program, or the nonconformity of the Lease Upgrade Program with any applicable Law or the failure by any Originator or any Seller to satisfy any of its obligations with respect to the Lease Upgrade Program; or
(xiv) the failure by any Originator or any Seller to comply with the terms of the Lease Upgrade Program or any termination or rescission (or attempted termination or rescission) of this Agreementthe Lease Upgrade Program.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any such Person may have hereunder or under Applicable Law, whether or not the transactions contemplated hereby shall be consummatedeach Seller Party, Borrower jointly and severally, hereby agrees to indemnify, pay indemnify and hold the Agent harmless Buyer, Buyer’s Affiliates and each all of the Banks their respective successors, transferees, participants and any holder(s) of the Notesassigns, and the all officers, members, managers, directors, employeesshareholders, employees and agents and affiliates of any of the Agentforegoing (each an “Indemnified Person”), each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all claims, losses and liabilities (including Attorney Costs) (all of the foregoing being collectively referred to as “Indemnified Amounts”) arising out of or resulting from this Framework Agreement or any other liabilitiesTransaction Agreement, obligationsany of the transactions contemplated thereby, or the ownership, maintenance or purchasing of any Purchased Note, or any actions or inactions of any Outfront Party; excluding however (a) Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that the Indemnified Amounts resulted solely from the gross negligence or willful misconduct by the Indemnified Person seeking indemnification or any material breach of the obligations of the Indemnified Person under the Transaction Agreements and (b) Taxes (other than Taxes that represent losses, damages, penalties, actions, judgments, suits, claims, costsdamages etc. arising from any non-Tax claim). Without limiting or being limited by the foregoing, expenses each Seller Party, jointly and disbursements severally, shall pay on demand to each Indemnified Person any and all amounts necessary to indemnify the Indemnified Person from and against any and all Indemnified Amounts relating to or resulting from any of the following (but excluding Indemnified Amounts and Taxes described in clauses (a) and (b) above (other than the Taxes specifically enumerated in clause (xii) below)):
(i) the transfer by such Seller Party of any kind interest in any Purchased Note or nature whatsoever (includingany proceeds thereof, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees other than in connection with Transactions entered into with Buyer pursuant to the Transaction Agreements;
(ii) any investigativerepresentation, administrative warranty or judicial proceeding commenced statement made or threatened, whether deemed made by such Seller Party (or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by any of its officers) under or asserted against the Indemnitees, in any manner relating to or arising out of connection with this Framework Agreement, any of the other Transaction Agreement, any Information Package, Purchase Report or any other information or report delivered by or on behalf of such Seller Party pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iii) the failure of such Seller Party, the Seller Party Agent or the Securitization Servicer to comply with the terms of any Transaction Agreement, any Seller Note, any Securitization Documents or any other agreementApplicable Law, document or instrument executed and delivered the nonconformity of any Seller Note with any such Applicable Law;
(iv) the lack of an enforceable ownership interest or a first priority perfected security interest in any Purchased Note transferred by Borrower such Seller Party, or purported to be transferred by such Seller Party, to Buyer pursuant to the Transaction Agreements against all Persons (including any bankruptcy trustee or similar Person);
(v) any attempt by any Person to void the transfers by such Seller Party contemplated hereby under statutory provisions or common law or equitable action;
(vi) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other Obligor similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Purchased Note transferred by such Seller Party, or purported to be transferred by such Seller Party, to Buyer pursuant to the Transaction Agreements, whether as of the applicable Purchase Date or at any subsequent time;
(vii) any dispute, claim, offset, defense (other than discharge in bankruptcy), or other similar claim or defense of any Receivables Entity to the payment when due of any Purchased Note transferred, or purported to be transferred, by such Seller Party to Buyer pursuant to the Transaction Agreements (including a defense based on such Purchased Note not being a legal, valid and binding obligation of the applicable Receivables Entity enforceable against it in accordance with its terms);
(viii) any failure of such Seller Party or the Securitization Servicer to perform any of its duties or obligations arising under or in connection herewith with any Purchased Note in accordance with the provisions thereof or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks other Securitization Facility Documents;
(ix) any suit or claim related to make any Purchased Note transferred by such Seller Party, or purported to be transferred by such Seller Party, to Buyer pursuant to the Loans hereunderTransaction Agreements;
(x) any investigation, the agreement of Mercantile litigation or proceeding (actual or threatened) related to issue the Letters of Credit hereunder this Framework Agreement or any other Transaction Agreement or the use or intended use of the proceeds of any Loan purchase hereunder or in respect of any Purchased Note;
(collectivelyxi) any failure of such Seller Party or Seller Party Agent to comply with its covenants, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder obligations and agreements contained in this Framework Agreement or any other Transaction Agreement;
(xii) any Taxes (other than Excluded Taxes) imposed upon any Indemnified Person or upon or with respect to indemnified liabilities any Purchased Note transferred by such Seller Party, or purported to be transferred by such Seller, to Buyer pursuant to the Transaction 20 Agreements arising from by reason of the gross negligence purchase or willful misconduct ownership of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative such Purchased Note (or of any law interest therein);
(xiii) any inability of such Seller Party to transfer any Purchased Note as contemplated under the Transaction Agreements; or
(xiv) the violation or public policybreach by such Seller Party or Seller Party Agent of any confidentiality provision, Borrower shall contribute the maximum portion that it is permitted or of any similar covenant of non-disclosure, with respect to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementPurchased Note.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Borrowers shall pay, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold each Bank, the Issuing Bank, the Agent and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, counsel, agents and affiliates of the Agentattorneys-in-fact (each, each of the Banks and such holder(s) (collectively, the an "IndemniteesINDEMNIFIED PERSON") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, charges, expenses or disbursements which are reasonably and disbursements necessarily incurred in connection therewith (including Attorney Costs) of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement and any other Loan Documents, or the transactions contemplated hereby and thereby, and with respect to any investigation, litigation or proceeding (includingincluding any Insolvency Proceeding or appellate proceeding) related to this Agreement or the Specified Swap Contracts or the Loans or the Letters of Credit, without limitation, or the reasonable fees and disbursements use of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatenedthe proceeds thereof, whether or not such Indemnitees shall be designated any Indemnified Person is a party thereto)thereto (all the foregoing, that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilitiesINDEMNIFIED LIABILITIES"); provided PROVIDED, that Borrower the Borrowers shall have no obligation hereunder to an Indemnitee hereunder any Indemnified Person with respect to indemnified liabilities Indemnified Liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent such Indemnified Person; and PROVIDED FURTHER, that the undertaking Borrowers shall have no obligation hereunder with respect to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted Indemnified Liabilities owed by an Indemnified Person to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementanother Indemnified Person.
Appears in 1 contract
General Indemnity. In addition to The Borrower will indemnify the payment of expenses pursuant to Section 13.3Administrative Agent and each Lender, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, Administrative Agent and the Lenders' respective directors, officers, directors, employees, agents agents, counsel and affiliates of accountants and each Person, if any, who controls the Agent, Administrative Agent or any Lender (the Administrative Agent and each Lender and each of the Banks their respective directors, officers, employees, agents, counsel and such holder(s) (collectively, the accountants and control Persons is referred to as an "IndemniteesINDEMNITEE") and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnitee may consult in connection therewith and all expenses of litigation or preparation therefor) which any Indemnitee may incur or which may be asserted against any Indemnitee in connection with any investigativelitigation or investigation involving the Borrower or any of its Subsidiaries, administrative or judicial any officer, director, employee, agent, counsel or accountant thereof (including the Administrative Agent's or Lenders' compliance with or contest of any subpoena or other process issued against it in any proceeding commenced involving the Borrower or threatenedany of its Subsidiaries), whether or not such Indemnitees shall be designated a party are parties thereto), that may be imposed on44 or any penalties or other matters involving the transactions contemplated hereby, incurred other than litigation commenced by or asserted the Borrower against the Indemnitees, in any manner relating to Lenders or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Administrative Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Borrower hereunder or under any other Credit Document and is finally determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyAdministrative Agent and except to the extent such claims, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified damages, liabilities arising and expenses result from the Administrative Agent's or a ▇▇▇▇▇▇'s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
General Indemnity. In addition to the payment Without limiting any other rights that any Beneficiary or any of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, agents, employees, agents and affiliates controlling Persons or Affiliates of any of the Agentforegoing (each an "Indemnified Party") may have hereunder, each of the Banks and such holder(s) (collectivelyunder any other Transaction Document or under applicable Law, the "Indemnitees") Performance Undertaking Provider hereby agrees to indemnify and hold harmless each Indemnified Party from and against any and all other liabilities, obligationsdamages, losses, damagesclaims, liabilities, deficiencies, costs, disbursements and expenses, including interest, penalties, actions, judgments, suits, claims, costs, expenses amounts paid in settlement and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable attorneys' fees and disbursements expenses (all of counsel for such Indemnitees the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any Indemnified Party (including in connection with or relating to any investigativeinvestigation by an Official Body, administrative litigation or judicial proceeding commenced lawsuit (actual or threatened) or order, whether consent, decree, judgment, claim or not such Indemnitees shall be designated a party other action of whatever sort (including the preparation of any defense with respect thereto), that may be imposed on, incurred by or asserted against the Indemnitees), in any manner relating to or each case, arising out of or resulting from this Agreement, any of the other Transaction Documents Agreement or any other agreementTransaction Document or any transaction contemplated hereby or thereby, document excluding, however, (a) Indemnified Amounts to the extent that such Indemnified Amounts resulted from the negligence, fraud or instrument executed and delivered by Borrower wilful misconduct on the part of such Indemnified Party; (b) recourse (except as otherwise specifically provided in this Agreement or any other Obligor Transaction Document) for Uncollectible Portfolio Receivables and the Related Security and Collections with respect thereto; (c) any Excluded Taxes and (d) any Indemnified Amount to the extent the same has been fully and finally paid in connection herewith or therewith, the statements contained in cash to such Indemnified Party pursuant to any commitment letters delivered by the Agent other provision of this Agreement or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities")other Transaction Document; provided that Borrower nothing in this Section 3 shall have no be construed as constituting a guarantee or indemnity in respect of the Seller's obligation to an Indemnitee hereunder make payments with respect to indemnified liabilities arising from the gross negligence Yield, Fees or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law Invested Amounts pursuant to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Receivables Transfer Agreement.
Appears in 1 contract
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Purchasers and hold them harmless from any liability, loss or damage resulting from the Agent and violation by the Company of Section 2.5. In addition, the Company shall indemnify each of Purchaser, the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the AgentInvestment Bank, each of the Banks Purchasers' or the Investment Bank's directors, officers, employees, agents, attorneys, accountants, consultants and such holder(s) Affiliates (collectivelyeach Purchaser, the Investment Bank and each of such directors, officers, employees, agents, attorneys, accountants, consultants and Affiliates is referred to as an "IndemniteesIndemnified Party") and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating to proceeding involving the Company or arising out any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, or (c) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed however, that the foregoing indemnity shall not apply to any Indemnified Party to the extent such claims, damages, liabilities and delivered by Borrower or any other Obligor expenses are determined in connection herewith or therewitha final, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined nonappealable judgment by a court of competent jurisdiction in a final nonappealable orderto have resulted from such Indemnified Party's own gross negligence or willful misconduct. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementTHE BORROWER EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 1 contract
Sources: Subordinated Note and Warrant Purchase Agreement (CalAmp Corp.)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.310.3, whether or not the transactions contemplated hereby shall be consummated, Borrower the Borrowers hereby agrees agree to indemnify, pay and hold the Agent and each of the Banks Agents, and the Alternate Currency Bank, each of the Lenders and any other holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each any of the Banks and such holder(s) them (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower any of the Borrowers or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by any of the Agent Agents or any of the BanksLenders, the agreement of any of the Banks Lenders' agreements to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower the Borrowers shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderjurisdiction. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower each of the Borrowers shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.the
Appears in 1 contract
Sources: Credit Agreement (Staffmark Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any such Person may have hereunder or under Applicable Law, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks Borrower and any holder(s) TRM ATM, as Administrator, hereby agrees, jointly and severally, to indemnify each of the NotesAdministrative Agent, the Lender, each Certificateholder, the Liquidity Providers, the Liquidity Agent, the Collateral Agent, each of their respective Affiliates, and the all successors and permitted transferees, participants and assigns and all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agentforegoing (each an "INDEMNIFIED PARTY"), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or of them as a result of a claim arising out of this Agreement, any of or relating to the other Transaction Documents or any other agreementthe transactions contemplated thereby, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithEXCLUDING, HOWEVER, Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as extent determined by a court of competent jurisdiction or in a final nonappealable orderbinding arbitration to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party. To Without limiting the extent that foregoing, Borrower and TRM ATM, as Administrator, shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative transfer by Borrower of any law or public policy, Borrower shall contribute interest in any of its assets other than the maximum portion that it is permitted to pay and satisfy under applicable law grant of a security interest granted to the payment Collateral Agent and satisfaction of all indemnified liabilities incurred the other Secured Parties, pursuant to SECTION 1.03 (or as otherwise permitted hereunder);
(ii) any representation or warranty made by the Indemnitees Borrower (or any of themits officers or Affiliates) under or in connection with any Transaction Document, any information or report delivered by or on behalf of Borrower pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made (unless so disclosed at the time of delivery);
(iii) the failure by Borrower or Administrator to comply with any Applicable Law or the terms of any of the Transaction Documents;
(iv) the failure to vest and maintain vested in the Collateral Agent (A) a first priority perfected security interest in all of the assets of Borrower which may be perfected by filing a financing statement under the UCC, (B) a security interest in all of the other assets of Borrower, in each case free and clear of any Lien, other than a Lien arising solely as a result of an act of the Secured Parties, whether existing at the time of any Borrowing or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the assets of Borrower, whether at the time of any Borrowing or at any time thereafter;
(vi) any failure of Borrower to perform its duties or obligations in accordance with the provisions of ARTICLE VII or otherwise hereunder or under any other Transaction Document;
(vii) any failure by Borrower to file any tax returns or pay any taxes when due; and
(viii) any tax or governmental fee, fine or charge (but not including U.S. federal income taxes upon or measured by net income or state or local taxes upon or measured by net income imposed on the Indemnified Parties by the jurisdiction in which such Indemnified Party is organized or is otherwise taxable without regard to their participation in the transactions contemplated by the Transaction Documents, and also not including such amounts resulting from any income tax filing by Certificateholders being inconsistent with the characterization of advances by the Borrower to TRM ATM as a loan or series of loans for federal income tax purposes other than any such filing required by any taxing authority), all interest and penalties (including, but not limited to, penalties for failure to file returns or pay amounts due) thereon or with respect thereto, and all out-of-pocket costs and expenses, including, but not limited to (i) the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the Loans, the Certificates or any interest in the assets of Borrower (including, without limitation, any fees, fines or charges which may be imposed as a result of any failure to properly disclose any fees charged to any consumer in an ATM transaction) and (ii) the reasonable fees and expenses incurred to file any returns required to be filed to report the same. The provisions parties hereto acknowledge and agree that neither the Borrower nor any of the undertakings and indemnification set out Indemnified Parties derives tax nexus to any jurisdiction solely by reason by its participation in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementtransaction or transactions contemplated by the Transaction Documents, unless otherwise required by appropriate taxing authorities.
Appears in 1 contract
General Indemnity. In addition to (a) Indemnification by the payment of expenses pursuant to Section 13.3, whether or not Company. the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Company will indemnify and hold harmless the Agent Purchaser, each of its directors, fund managers and officers, and each person, if any, who controls the Purchaser within the meaning of Section 15 of the Banks and any holder(sSecurities Act or Section 20(a) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless Exchange Act from and against any and all other liabilitieslosses, obligations, lossesclaims, damages, penaltiesliabilities and expenses (including reasonable costs of defense and investigation and all reasonable attorneys' fees) to which the Purchaser, actionseach of its directors, judgmentsfund managers and officers, suitsand each person, if any, who controls the Purchaser may become subject, under the Securities Act or otherwise, insofar as such losses, claims, costsdamages, liabilities and expenses and disbursements (or actions in respect thereof) arise out of or are based upon, (i) any kind untrue statement or nature whatsoever alleged untrue statement of a material fact contained, or incorporated by reference, in the Registration Statement relating to Common Stock being sold to the Purchaser (including, without limitation, including the reasonable fees and disbursements of counsel for such Indemnitees any prospectus supplement filed in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated the transactions contemplated hereunder (the "Prospectus Supplement") which are a party theretopart of it), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreementamendment or supplement to it, document or instrument executed and delivered by Borrower (ii) the omission or alleged omission to state in that Registration Statement or any other Obligor document incorporated by reference in connection herewith the Registration Statement, a material fact required to be stated therein or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks necessary to make the Loans hereunderstatements therein not misleading, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower the Company shall have no obligation not be liable under this Section 8.1(a) to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of extent that Indemnitee as determined by a court of competent jurisdiction in shall have determined by a final nonappealable order. To judgment (with no appeals available) that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act, undertaken or omitted to be taken by the extent Purchaser or such person through its bad faith or willful misconduct; provided, however, that the undertaking foregoing indemnity shall not apply to indemnifyany loss, pay claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and hold harmless set forth in conformity with written information furnished to the Company by the Purchaser expressly for use in the preceding sentence may be unenforceable because it is violative of Registration Statement, any law preliminary prospectus or public policythe Prospectus (or any amendment or supplement thereto); and provided, Borrower shall contribute the maximum portion further, that it is permitted to pay and satisfy under applicable law with respect to the payment Prospectus, the foregoing indemnity shall not inure to the benefit of the Purchaser or any such person from whom the person asserting any loss, claim, damage, liability or expense purchased Common Stock, if copies of the Prospectus were timely delivered to the Purchaser pursuant hereto and satisfaction a copy of all indemnified liabilities the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Purchaser or any such person to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Stock to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Company will reimburse the Purchaser and each such controlling person promptly upon demand for any legal or other costs or expenses reasonably incurred by the Indemnitees Purchaser or any of them. The provisions of controlling person in investigating, defending against, or preparing to defend against any such claim, action, suit or proceeding, except that the undertakings Company will not be liable to the extent a claim or action which results in a loss, claim, damage, liability or expense arises out of, or is based upon, an untrue statement, alleged untrue statement, omission or alleged omission, included in any Registration Statement, Prospectus or Prospectus Supplement or any amendment or supplement to the thereto in reliance upon, and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and conformity with, written information furnished by the termination of this AgreementPurchaser to the Company for inclusion in the Registration Statement, Prospectus or Prospectus Supplement.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Usinternetworking Inc)
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not Lenders and the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Company of Section 2.4. In addition, the Company shall indemnify each Lender, the Agent, the Syndication Agent, each of the Lenders' or the Agent's or the Syndication Agent's directors, officers, employees, agents, attorneys, accountants, consultants and each Person, if any, who controls any Lender or the Agent (each Lender, the Agent and each of the Banks and any holder(s) of the Notessuch directors, and the officers, directors, employees, agents agents, attorneys, accountants, consultants and affiliates of the Agent, control Persons is referred to as an "INDEMNIFIED PARTY") and hold each of the Banks and such holder(s) (collectively, the "Indemnitees") them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party relating to, arising out of or by reason of this Agreement or any other Credit Document in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the Credit Security in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; PROVIDED, document HOWEVER, that the foregoing indemnity shall not apply (i) to litigation commenced by the Company against the Lenders or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement Syndication Agent which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder Agent or the Syndication Agent in a final nonappealable judgment or (collectivelyii) to the extent such claims, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified damages, liabilities arising and expenses result from the Indemnified Party's own gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable ordermisconduct. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementTHE COMPANY EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Borrower shall pay, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay defend, and hold the Agent Agent-Related Persons, the Lender-Related Persons with respect to each Lender, and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, agents agents, and affiliates of the Agentattorneys-in-fact (each such Person, each of the Banks and such holder(s) (collectively, the an "IndemniteesIndemnified Person ") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, damages, expenses and disbursements of or liabilities (or actions, suits or proceedings, including any kind inquiry or nature whatsoever investigation, with respect thereto) (includingcollectively, without limitation"Claims") to which any Indemnified Person may become subject, the reasonable fees and disbursements of counsel for insofar as such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the IndemniteesClaims arise out of, in any manner relating to way relate to, or arising out of result from, this Agreement, any of the other Transaction Documents Agreement or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent Loan Document or any of the Bankstransactions contemplated hereby and thereby and to reimburse upon demand each Indemnified Person for any and all reasonable legal and other expenses incurred in connection with investigating, the agreement of preparing to defend or defending any of the Banks to make the Loans hereundersuch Claim; provided, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectivelyhowever , the "indemnified liabilities"); provided that Borrower shall not have no any indemnity obligation to an Indemnitee hereunder with respect to indemnified liabilities any Indemnified Person for any Claim (a) based on or arising from the gross negligence or willful misconduct of that Indemnitee such Indemnified Person or a breach of any Loan Document or applicable law by an Indemnified Person, or (b) made or prosecuted by Borrower. Borrower shall be given prompt notice of the commencement of any action or proceeding on any Claim and of any overt written threat of litigation on any Claim, but the failure to receive such notice shall not relieve Borrower from any of its obligations under Section 11.3 or other provisions hereunder. Borrower shall have the right, with the consent of the Indemnified Person (which shall not unreasonably be withheld), to select a firm of attorneys as determined by a court legal counsel to defend any Claim, and Borrower shall pay the fees, expenses and disbursements of competent jurisdiction such counsel and any special or local counsel, and if the Indemnified Person would or could result in a final nonappealable order. To conflict of interest, or that a defense, crossclaim or counterclaim is available to such Indemnified Person that is not available to any other Person represented by such legal counsel in the same proceeding, then to the extent that reasonably necessary to avoid such a conflict of interest or to permit unqualified assertion of such a defense, crossclaim or counterclaim, such Indemnified Person shall be entitled to separate representation, at the undertaking Borrower's expense, by legal counsel selected by such Indemnified Person and reasonably acceptable to indemnifythe Borrower, pay with all such legal counsel using reasonable efforts to avoid unnecessary duplication of effort by counsel. Indemnified Person shall have the right to be represented by counsel of its own choosing (i) at Borrower's expense whenever any Event of Default or Potential Default is continuing, and hold harmless set forth in (ii) at such Indemnified Person's expense at any other time, and Borrower and the preceding sentence may be unenforceable because it is violative of any law or public policy, attorneys selected by Borrower shall contribute cooperate in all reasonable respects with such counsel. Borrower shall be entitled to settle any Claim, at Borrower's sole cost and expense, without the maximum portion that it consent of the Indemnified Person if (A) no Event of Default or Potential Default is permitted to pay continuing, (B) the settlement does not and satisfy will not, under applicable law any circumstances, impose any present or future payment or performance obligation upon the Indemnified Person, and (C) the settlement includes the giving by the claimant to the payment Indemnified Person of a release from all liability in respect of such Claim, and satisfaction of all indemnified liabilities incurred by otherwise only upon the Indemnitees or any of them. The provisions prior written consent of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementIndemnified Person.
Appears in 1 contract
General Indemnity. In addition The Company agrees, subject to the payment provisions of expenses pursuant sections 5 and 6, to Section 13.3indemnify and save the Indemnitee harmless, whether to the full extent permitted by law, including but not limited to the extent permitted under the Business Corporations Act (British Columbia), as the same exists on the date hereof or not may hereafter be amended (but, in the transactions contemplated hereby shall be consummatedcase of such amendment, Borrower hereby agrees only to indemnifythe extent that such amendment permits the Company to provide broader indemnification rights than the law permitted prior to such amendment) from and against:
(a) any and all costs, pay charges, expenses, fees, damages or liabilities (including legal or other professional fees and hold the Agent and each disbursements); and
(b) without limitation of the Banks and any holder(s) of the Notessection 3(a), and the officers, directorsall statutory obligations to creditors, employees, agents suppliers, contractors, subcontractors, and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements government or any agency or division of any kind or nature whatsoever (government, including, without limitation, any federal, provincial, state, regional or municipal government; regardless of when they arose and howsoever arising, and whether arising in law, equity, under statute, regulation or ordinance, and in whatever jurisdiction and whether incurred alone or jointly with others, which the reasonable fees and disbursements Indemnitee may suffer, sustain, incur or be required to pay arising out of counsel for such Indemnitees or incurred in connection with respect of any investigativeaction, suit, proceeding, arbitration, assessment, order, investigation, discovery, enquiry, hearing or claim, whether civil, criminal, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated other process howsoever arising (each of which is hereinafter referred to as a party thereto“Claim”), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or and arising out of this Agreementor in connection with:
(c) the affairs of the Company or any Associated Corporation; or
(d) the exercise by the Indemnitee of the Indemnitee’s powers or the performance of the Indemnitee’s duties as a Director or Officer; which may be brought, commenced, made, prosecuted or threatened against:
(e) the Indemnitee; or
(f) the Company or any Associated Corporation; or
(g) any subsidiary of the Company or other entity in which the Company may have an interest (an “Other Entity”); or
(h) any of the other Transaction Documents directors or officers of the Company or any other agreement, document Associated Corporation or instrument executed and delivered by Borrower Other Entity or any other Obligor person acting in a similar capacity; for or in respect of which:
(i) the Indemnitee is made a party by reason of the Indemnitee being a Director or Officer or otherwise having been a director or employee or officer of the Company or any Associated Corporation (or at the request of the Company a director or officer of or in a similar capacity with any Other Entity); or
(j) the Indemnitee may or may be required to participate, whether by providing evidence or otherwise; including, without limitation, any and all costs, charges, expenses, fees, damages or liabilities which the Indemnitee may suffer, sustain or incur or be required to pay in connection herewith with investigating, initiating, defending, appealing, preparing for, providing evidence in, instructing and receiving the advice of the Indemnitee’s own or therewithother counsel or other professional advisor, the statements contained in any commitment letters delivered by the Agent or any of the Banksamount paid to settle any Claim or satisfy any judgment, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder fine or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementpenalty.
Appears in 1 contract
Sources: Indemnification Agreement (Aspreva Pharmaceuticals CORP)
General Indemnity. In addition to the payment of expenses pursuant (1) Subject to Section 13.31.01(2), whether the Companies will severally, in respect of liability related to acting as a director or not officer of each such Company, and jointly and severally, with respect to a Company and its direct or indirect subsidiaries in respect of liability related to acting as a director or officer of a direct or indirect subsidiary (individually, a “Subsidiary” and collectively, the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s“Subsidiaries”) of the NotesCompany, indemnify and save harmless the officersIndemnitee from and against all losses, directorscosts, employeescharges, agents damages, expenses, awards, settlements, liabilities, fines, penalties, demands and affiliates causes of the Agent, each action of the Banks whatever kind including all legal fees and such holder(s) costs on a solicitor and client basis and other reasonable professional fees (collectively, the "Indemnitees“Claims") harmless from to the full extent permitted by law regardless of when they arose and against any howsoever arising, that the Indemnitee sustains, incurs or may be subject to and all other liabilitieswhich the Indemnitee would not have sustained, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements incurred or be subjected to if the Indemnitee had not accepted the Companies’ request to act as a director or officer of any kind or nature whatsoever the Companies.
(including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees 2) The indemnity provided in Section 1.01(1) will not apply unless in connection with any investigative, administrative the matter in respect of a Company or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated in respect of a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating Subsidiary which gave rise to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithClaims for which indemnification is sought, the statements contained Indemnitee
(i) acted honestly and in any commitment letters delivered good faith with a view to the best interests of such Company or such Subsidiary; and
(ii) in the case of a criminal or administrative action or proceeding that is enforced by the Agent or any of the Banksa monetary penalty, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder Indemnitee had reasonable grounds for believing that his conduct was lawful.
(collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. 3) To the extent that the undertaking to indemnifya change of relevant law, pay and hold harmless set forth in the preceding sentence may be unenforceable because whether by statute or judicial decision, permits greater indemnification than that afforded by Section 1.01(1), as limited by Section 1.01(2), it is violative the intent of the parties hereto that the Indemnitee shall enjoy under this Agreement the benefits afforded by any law or public policy, Borrower shall contribute such change.
(4) The indemnity provided in Section 1.01(1) will also not apply to any proceeding initiated by the maximum portion that Indemnitee against any of the Companies unless it is permitted brought to pay and satisfy establish or enforce any right under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Indemnity Agreement.
Appears in 1 contract
Sources: Indemnification & Liability (Infosat Communications LP)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether (i) Whether or not the transactions contemplated hereby shall be are consummated, the Borrower hereby agrees to shall indemnify, pay defend and hold the Agent Administrative Agent-Related Persons and each Lender and each of the Banks and any holder(s) of the Notes, and the its respective officers, directors, trustees, employees, counsel, agents and affiliates of the Agentattorneys-in-fact (each, each of the Banks and such holder(s) (collectively, the an "IndemniteesIndemnified Person") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claimscosts, costscharges, expenses and disbursements (including reasonable Attorney Costs) of any kind or nature whatsoever which may at any time (including, without limitationincluding at any time following repayment of the Loans, the reasonable fees termination of the Letters of Credit and disbursements the termination, resignation or replacement of counsel for such Indemnitees in connection with the Administrative Agent or replacement of any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may Lender) be imposed on, incurred by or asserted against the Indemnitees, any such Person in any manner way relating to or arising out of this Agreement (other than costs incurred in connection with the initial review, execution and delivery hereof by the Lenders), or any document contemplated by or referred to herein or therein, or the transactions contemplated hereby or thereby, or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the or Letters of Credit hereunder or the use or intended use of the proceeds of thereof, whether or not any Loan hereunder Indemnified Person is a party thereto (all the foregoing, collectively, the "indemnified liabilitiesIndemnified Liabilities"); provided provided, however, that the Borrower shall have no obligation hereunder to an Indemnitee hereunder any Indemnified Person with respect to indemnified liabilities arising Indemnified Liabilities to the extent they are determined by a court of competent jurisdiction to result from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To such Indemnified Person.
(ii) At the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative election of any law or public policyIndemnified Person, the Borrower shall contribute defend such Indemnified Person using legal counsel satisfactory to such Indemnified Person in such Person's sole discretion, at the maximum portion that it is permitted to pay sole cost and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions expense of the undertakings Borrower. All amounts owing under this Section shall be paid within 30 days after demand.
(iii) The agreements and indemnification set out obligations contained in this Section 13.5 subsection 11.5(a) shall survive satisfaction and payment in full of Borrower's the Loans, the L/C Obligations and the termination of this Agreementthe Commitments and all Letters of Credit.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, The Borrower hereby agrees to indemnifydefend (with counsel satisfactory to LaSalle), pay protect, indemnify and hold the Agent harmless LaSalle, each affiliate or subsidiary of LaSalle, and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, attorneys and agents and affiliates of the Agent, (each of the Banks and such holder(s) (collectively, the an "IndemniteesINDEMNIFIED PARTY") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable disbursements and the fees (on a solicitor-client basis) of internal and disbursements of external counsel for such Indemnitees each Indemnified Party (the "CLAIMS") in connection with any investigative, administrative or judicial proceeding commenced or threatenedproceeding, whether or not such Indemnitees the Indemnified Party shall be designated a party thereto), that which may be imposed on, incurred by by, or asserted against the Indemniteesagainst, any Indemnified Party (whether direct, indirect or consequential and whether based on any federal, state or local laws or regulations including, without limitation, securities, environmental and commercial laws and regulations, under common law or in equity, or based on contract or otherwise) in any manner relating to or arising out of this AgreementAgreement or any Other Agreement or any act, event or transaction related or attendant to any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithforegoing, the statements contained in any commitment letters delivered by making and the Agent or any management of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderLoans. To the extent that the undertaking to indemnify, pay and hold harmless indemnify set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrower shall contribute satisfy such undertaking to the maximum portion that it is extent permitted by applicable law. Any liability, obligation, loss, damage, penalty, cost or expense covered by this indemnity shall be paid to pay and satisfy under each Indemnified Party on demand, and, failing prompt payment, shall, together with interest thereon at the highest rate then applicable law to Revolving Loans hereunder from the date incurred by each Indemnified Party until paid by the Borrower, be added to the payment Liabilities of the Borrower and satisfaction of all indemnified liabilities incurred be secured by the Indemnitees Collateral. The Borrower shall have no obligation to indemnify any Indemnified Party for any Claims to the extent resulting from the gross negligence or any wilful misconduct of themsuch Indemnified Party. The provisions of the undertakings and indemnification set out in this Section 13.5 SECTION 14 shall survive the satisfaction and payment of Borrower's Obligations the other Liabilities and the termination of this Agreement.
Appears in 1 contract
General Indemnity. In addition Borrower agrees upon demand to pay or reimburse Lender for all liabilities, obligations and out-of-pocket expenses, including Lender’s Expenses and reasonable fees and expenses of counsel for Lender from time to time arising in connection with the payment enforcement or collection of expenses pursuant to Section 13.3sums due under the Loan Documents, whether and in connection with any amendment or not modification of the transactions contemplated hereby Loan Documents or any “work-out” in connection with the Loan Documents. Borrower shall be consummated, Borrower hereby agrees to indemnify, pay reimburse and hold the Agent Lender, and each of the Banks and any holder(s) of the Notesits respective successors, and the assigns, agents, attorneys, officers, directors, employeesshareholders, servants, agents and affiliates of the Agent, employees (each of the Banks and such holder(s) (collectively, the "Indemnitees"an “Indemnified Person”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claimsdemands, costs, expenses and disbursements claims of any kind and nature (including claims relating to environmental discharge, cleanup or nature compliance), all costs and expenses whatsoever to the extent they may be incurred or suffered by such Indemnified Person in connection therewith (including, without limitation, the including reasonable attorneys’ fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoexpenses), that may be imposed onfines, incurred by penalties (and other charges of any applicable Governmental Authority), licensing fees relating to any item of Collateral, damage to or asserted against the Indemniteesloss of use of property (including consequential or special damages to third parties or damages to Borrower’s property), in or bodily injury to or death of any manner person (including any agent or employee of Borrower) (each, a “Claim”), directly or indirectly relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectivelythe Loans or otherwise, the "indemnified liabilities")falsity of any representation or warranty of Borrower or Borrower’s failure to comply with the terms of this Agreement or any other Loan Document. The foregoing indemnity shall cover, without limitation, (i) any Claim in connection with a design or other defect (latent or patent) in any item of equipment or product included in the Collateral, (ii) any Claim for infringement of any patent, copyright, trademark or other intellectual property right, (iii) any Claim resulting from the presence on or under or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials on the premises owned, occupied or leased by Borrower, including any Claims asserted or arising under any Environmental Law, (iv) any Claim for negligence or strict or absolute liability in tort, or (v) any Claim asserted as to or arising under any Account Control Agreement or any Landlord Agreement; provided that provided, however, Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the not indemnify Lender for any liability incurred by Lender as a direct and sole result of Lender’s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction misconduct. Such indemnities shall continue in a final nonappealable order. To full force and effect, notwithstanding the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law expiration or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement. Upon Lender’s written demand, Borrower shall assume and diligently conduct, at its sole cost and expense, the entire defense of Lender, each of its partners, and each of their respective, agents, employees, directors, officers, shareholders, successors and assigns against any indemnified Claim described in this Section 10.3(a). Borrower shall not settle or compromise any Claim against or involving Lender without first obtaining Lender’s written consent thereto, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Venture Loan and Security Agreement (Pharmasset Inc)
General Indemnity. In addition to Without limiting any other rights which any such Person may have hereunder or under applicable law, the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower Seller hereby agrees to indemnifyindemnify BTMUNY, pay both individually and hold as the Administrative Agent and the BTMU Purchaser Agent, the Purchasers, the Liquidity Banks, the Liquidity Agent, each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the all successors, transferees, participants and assigns and all officers, directors, employeesshareholders, agents controlling persons, and affiliates employees of any of the Agentforegoing, and any successor servicer and subservicer not affiliated with Lennox (each of the Banks and such holder(s) (collectivelyan “Indemnified Party”), the "Indemnitees") harmless forthwith on demand, from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable including attorneys’ fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or of them arising out of this Agreement, any of or relating to the other Transaction Documents or the ownership or funding of the Asset Interest or in respect of any other agreement, document or instrument executed and delivered by Borrower Receivable or any other Obligor Contract, excluding, however, (x) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party or (y) recourse (except as otherwise specifically provided in connection herewith or therewith, this Agreement) for Defaulted Receivables; the statements contained in Seller further agrees to indemnify any commitment letters delivered by the Agent or any of the Banks, the agreement agent (which is not otherwise an Indemnified Party) of any of the Banks to make the Loans hereunderBTMUNY, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectivelyAgents, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities Purchasers, the Liquidity Banks, and the Liquidity Agent forthwith on demand, from and against any and all Indemnified Amounts awarded against or incurred by any of them arising from out of or caused by the gross negligence or willful misconduct of the Seller. Without limiting the foregoing, the Seller shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the transfer by any Seller Party of any interest in any Receivable other than the transfer of Receivables and related property by the Originators to the Seller pursuant to the Sale Agreement, the transfer of an Asset Interest to the Investors pursuant to this Agreement and the grant of a security interest to the Secured Parties pursuant to Section 9.1;
(ii) any representation or warranty made by the Seller in the last sentence of Section 6.1(p) shall have been false, incorrect or misleading in any respect when made or deemed made, or any other representation or warranty made in writing by any Seller Party (or any of its officers) under or in connection with any Transaction Document, any Information Package, Interim Information Package or any other information or report delivered by or on behalf of any Seller Party pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered, as the case may be; provided, however, that Indemnitee as determined in the case of any representation, warranty or information that was not made or delivered in writing, indemnification shall be available to an Indemnified Party hereunder only if such representation, warranty or information was reasonably relied upon by a court such Indemnified Party;
(iii) the failure by any Seller Party to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of competent jurisdiction any Pool Receivable or the related Contract with any such applicable law, rule or regulation or the failure of the Seller to perform its duties or obligations in a final nonappealable order. To accordance with the provisions hereof or to perform its duties or obligations under the Contracts;
(iv) the failure to vest and maintain vested in (A) the Investors an undivided percentage ownership interest, to the extent that of the undertaking to indemnifyAsset Interest, pay and hold harmless set forth in the preceding sentence may Receivables in, or purporting to be unenforceable because it is violative in, the Receivables Pool, or (B) the Secured Parties a security interest in the Collateral, in each case free and clear of any law Lien, other than a Lien arising solely as a result of an act of any Investor or public policythe Administrative Agent, Borrower shall contribute whether existing at the maximum portion that it is permitted time of any Purchase or Reinvestment of such Asset Interest or at any time thereafter;
(v) the failure to pay and satisfy file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable law jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivables or the related Contract not being a legal, valid and satisfaction binding obligation of all indemnified liabilities incurred by the Indemnitees such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of them. The the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vii) any matter described in clause (i) or (ii) of Section 3.2(a);
(viii) any failure of any Seller Party, as the Master Servicer or otherwise, to perform its duties or obligations in accordance with the provisions of Article III or Article VIII;
(ix) any product liability claim arising out of or in connection with merchandise or services that are the undertakings subject of any Pool Receivable;
(x) any claim of breach by any Seller Party of any related Contract with respect to any Pool Receivable;
(xi) any Tax or Other Taxes, all interest and indemnification set out penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in this Section 13.5 shall survive satisfaction and payment defending against the same, which may arise by reason of Borrower's Obligations and the termination purchase or ownership of this Agreementany Asset Interest, or any other interest in the Pool Receivables or in any goods which secure any such Pool Receivables; or
(xii) the commingling of Collections of Pool Receivables at any time with other funds.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Lennox International Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any such Person may have hereunder or under Applicable Law, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks Borrower and any holder(s) TRM ATM, as Administrator, hereby agrees, jointly and severally, to indemnify each of the NotesAdministrative Agent, the Lender, each Certificateholder, the Liquidity Providers, the Liquidity Agent, the Collateral Agent, each of their respective Affiliates, and the all successors and permitted transferees, participants and assigns and all officers, directors, employeesshareholders, controlling persons, employees and agents and affiliates of any of the Agentforegoing (each an "Indemnified Party"), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively referred to as "Indemnified Amounts") awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or of them as a result of a claim arising out of this Agreement, any of or relating to the other Transaction Documents or any other agreementthe transactions contemplated thereby, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithexcluding, however, Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as extent determined by a court of competent jurisdiction or in a final nonappealable orderbinding arbitration to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party. To Without limiting the extent that foregoing, Borrower and TRM ATM, as Administrator, shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative transfer by Borrower of any law or public policy, Borrower shall contribute interest in any of its assets other than the maximum portion that it is permitted to pay and satisfy under applicable law grant of a security interest granted to the payment Collateral Agent and satisfaction of all indemnified liabilities incurred the other Secured Parties, pursuant to Section 1.03 (or as otherwise permitted hereunder);
(ii) any representation or warranty made by the Indemnitees Borrower (or any of themits officers or Affiliates) under or in connection with any Transaction Document, any information or report delivered by or on behalf of Borrower pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made (unless so disclosed at the time of delivery);
(iii) the failure by Borrower or Administrator to comply with any Applicable Law or the terms of any of the Transaction Documents;
(iv) the failure to vest and maintain vested in the Collateral Agent (A) a first priority perfected security interest in all of the assets of Borrower which may be perfected by filing a financing statement under the UCC, (B) a security interest in all of the other assets of Borrower, in each case free and clear of any Lien, other than a Lien arising solely as a result of an act of the Secured Parties, whether existing at the time of any Borrowing or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the assets of Borrower, whether at the time of any Borrowing or at any time thereafter;
(vi) any failure of Borrower to perform its duties or obligations in accordance with the provisions of Article VII or otherwise hereunder or under any other Transaction Document;
(vii) any failure by Borrower to file any tax returns or pay any taxes when due; and
(viii) any tax or governmental fee, fine or charge (but not including U.S. federal income taxes upon or measured by net income or state or local taxes upon or measured by net income imposed on the Indemnified Parties by the jurisdiction in which such Indemnified Party is organized or is otherwise taxable without regard to their participation in the transactions contemplated by the Transaction Documents, and also not including such amounts resulting from any income tax filing by Certificateholders being inconsistent with the characterization of advances by the Borrower to TRM ATM as a loan or series of loans for federal income tax purposes other than any such filing required by any taxing authority), all interest and penalties (including, but not limited to, penalties for failure to file returns or pay amounts due) thereon or with respect thereto, and all out-of-pocket costs and expenses, including, but not limited to (i) the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the Loans, the Certificates or any interest in the assets of Borrower (including, without limitation, any fees, fines or charges which may be imposed as a result of any failure to properly disclose any fees charged to any consumer in an ATM transaction) and (ii) the reasonable fees and expenses incurred to file any returns required to be filed to report the same. The provisions parties hereto acknowledge and agree that neither the Borrower nor any of the undertakings and indemnification set out Indemnified Parties derives tax nexus to any jurisdiction solely by reason by its participation in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementtransaction or transactions contemplated by the Transaction Documents, unless otherwise required by appropriate taxing authorities.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby Each Party (“Indemnifying Party”) agrees to indemnify, pay defend and hold harmless the Agent other Party, its Affiliates and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, agents agents, representatives, successors, and affiliates of the Agentassigns (“Indemnified Parties”), each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilitiesThird Party claims, obligationsdamages, losses, damagessuits, actions, demands, proceedings, expenses, and/or liabilities of any kind (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Claims”), against the Indemnified Party, to the extent that such Claims arise out of or relate to: (a) the Indemnifying Party’s breach or alleged breach of any warranty, representation or covenant made under this Agreement; (b) infringement or misappropriation or alleged infringement or misappropriation of an Intellectual Property Right of a Third Party (i) in the case of TRX as the Indemnifying Party, by the TRX Works, the Developed Works (except to the extent such Claim is based upon Expedia Specifications) or any Services (excluding Expedia Works used therein), or (ii) in the case of Expedia as the Indemnifying Party, the Expedia Works or the Expedia Specifications; (c) violation of Applicable Law by the Indemnifying Party; (d) Claims by government regulators or agencies for fines, penalties, actionssanctions, judgmentsunderpayments or other remedies to the extent such fines, suitspenalties, claimssanctions, costs, expenses and disbursements underpayments or other remedies relate to Indemnifying Party’s failure to perform its responsibilities under this Agreement; (e) the death or bodily injury of any kind agent, employee, customer, business, invitee, business visitor or nature whatsoever (including, without limitation, other person caused by the reasonable fees and disbursements negligence or other tortious conduct of counsel for such Indemnitees in connection Indemnifying Party or the failure of Indemnifying Party to comply with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of its obligations under this Agreement; and (f) the damage, loss, disappearance or destruction of any of the other Transaction Documents real or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered tangible personal property caused by the Agent negligence or any other tortious conduct of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder Indemnifying Party or the use or intended use failure of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation Indemnifying Party to an Indemnitee hereunder comply with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy its obligations under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.
Appears in 1 contract
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not Secured Parties and the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Administrative Agent and hold them harmless from any liability, loss or damage resulting from the Agent and violation by the Company of Section 2.5. In addition, the Company shall indemnify each of Lender, the Banks and any holder(s) of Administrative Agent, the Notes, and the officers, directors, employees, agents and affiliates of the Collateral Agent, each of the Banks and such holder(s) (collectivelyLenders’, the "Indemnitees"Administrative Agent’s or the Collateral Agent’s directors, officers, employees, agents, attorneys, accountants and consultants, and each Person, if any, who controls any Lender or the Administrative Agent (each Secured Party, the Administrative Agent and each of such directors, officers, employees, agents, attorneys, accountants, consultants and control Persons is referred to as an “Indemnified Party”) and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penaltiesliabilities, actions, judgments, suits, claims, costs, losses and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party’s compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the Collateral in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply to litigation commenced by the Company against the Lenders or the Administrative Agent or any of the Banks, the agreement which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document Table of Contents and is determined adversely to the use Lenders or intended use of the proceeds of any Loan hereunder (collectivelyAdministrative Agent in a final nonappealable judgment or to the extent such claims, damages, liabilities and expenses result from a Lender’s or the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the Administrative Agent’s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable ordermisconduct. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementTHE COMPANY EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3A. Borrowers shall, whether or not the transactions contemplated hereby shall be consummatedat their sole cost and expense, Borrower hereby agrees to protect, defend, indemnify, pay release and hold the Agent and each of the Banks and any holder(s) of the Notesharmless Lender, and the officersits parents, subsidiaries, Affiliates, shareholders, partners, members, directors, officers, employees, agents trustees, representatives and affiliates Servicer and the heirs, legal representatives, successors and assigns of the Agentforegoing (collectively, each the “Indemnified Parties”) for, from and against (i) any and all claims for brokerage, leasing, finders or similar fees which may be made relating to any Property and the Secured Obligations, and (ii) any and all claims, suits, liabilities (including, without limitation, strict liabilities), administrative and judicial actions, proceedings, obligations, debts, damages, losses (including, without limitation, unrealized loss of the Banks value of any Property), costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement, and such holder(slitigation costs of whatever kind or nature that may be asserted against, imposed on or incurred by Lender (including, without limitation, Lender’s reasonable attorneys’ fees and all other reasonable costs of defense) (collectively, the "Indemnitees"“Losses”) imposed upon or incurred by or asserted against any Indemnified Parties (except to the extent same are directly caused by gross negligence or willful misconduct of any Indemnified Party) and directly or indirectly arising out of or in any way relating to any one or more of the following:
(i) the Loan, the Loan Documents or the Loan Application, or the ownership of the Note, any of the other Loan Documents or any interest therein or receipt of any Gross Revenue or arising in respect of the Accounts;
(ii) any untrue statement of any material fact contained in any information concerning any Borrower, any Guarantor, any Borrower Control Person, any Property, the other Collateral or the Loan prepared or approved in writing by such Borrower, such Guarantor or such Borrower Control Person, or the omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information or in light of the circumstances under which it/he (as applicable) were made not misleading;
(iii) any and all lawful action that may be taken and is taken by Lender, consistent with the terms hereof, in connection with the enforcement of the provisions of this Agreement, the Note or any of the other Loan Documents, whether or not suit is filed in connection with same, or in connection with any Borrower Control Person or any Affiliate of any Borrower Control Person becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding;
(iv) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about any Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(v) any use or nonuse of or condition in, on or about any Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(vi) any failure on the part of Borrowers to perform or be in compliance with any of the terms of this Agreement or any of the other Loan Documents;
(vii) performance of any labor or services or the furnishing of any materials or other property in respect of any Property or any part thereof pursuant to provisions of this Agreement;
(viii) the failure of any Borrowers to file timely with the Internal Revenue Service an accurate Form 1▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be required in connection with this Agreement;
(ix) any failure of any Property to be in compliance with any Legal Requirement or Insurance Requirement;
(x) the enforcement by any Indemnified Party of the provisions of this Section 5.1.4; and
(xi) any and all claims and demands whatsoever that may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease.
(A) shall become due and payable ten (10) days after written demand and shall bear interest at the Default Rate from the earlier of (i) the date any such that any such amount was paid by Lender, and (ii) the tenth (10th) day after demand until paid, and shall constitute part of the Secured Obligations.
B. Borrowers shall, at their sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of this Agreement, the Note, the Mortgages or any of the other liabilitiesLoan Documents (but excluding gross receipts, obligationsincome, lossesfranchise and capital stock taxes). Borrowers shall, damagesat their sole cost and expense, penaltiesreimburse the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of this Agreement, actionsthe Note, judgmentsthe Mortgage or any of the other Loan Documents (but excluding gross receipts, suitsincome, claimsfranchise and capital stock taxes).
C. Borrowers shall, costsat their sole cost and expense, expenses protect, defend, indemnify, release and disbursements of hold harmless the Indemnified Parties from and against any kind or nature whatsoever and all Losses (including, without limitation, excise taxes, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable discretion) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under the covenants of Borrower with respect to ERISA and employee benefits plans contained herein, including, without limitation, the breach by any Borrower of any representation or warranty set forth in Section 4.1.18 or the breach by any Borrower of any covenant contained in Section 5.1.15, Section 6.1.16 and/or Section 6.1.17. Borrowers shall, at their sole cost and expense, reimburse the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable discretion) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under the covenants of Borrower with respect to ERISA and employee benefits plans contained herein, including, without limitation, the breach by any Borrower of any representation or warranty set forth in Section 4.1.18 or the breach by any Borrower of any covenant contained in Section 5.1.15, Section 6.1.16 and/or Section 6.1.17.
D. Borrowers shall, at their sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under Borrowers’ covenants with respect to any Property. Borrowers shall, at their sole cost and expense reimburse the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under Borrowers’ covenants with respect to any Property.
E. Promptly after receipt by an Indemnified Party under this Section 5.1.4 of notice of the making of any claim or the commencement of any action, such Indemnified Party shall, if a claim in respect thereof is to be made by such Indemnified Party against Borrowers under this Section 5.1.4, notify Borrowers in writing, but the omission to so notify Borrowers shall not relieve Borrowers from any liability that Borrowers may have to any Indemnified Party under this Section 5.1.4 or otherwise unless and to the extent that Borrowers did not otherwise possess knowledge of such claim or action and such failure resulted in the forfeiture by Borrowers of substantial rights and defenses or a substantial increase in its obligations hereunder. In case any such claim is made or action is brought against any Indemnified Party and such Indemnified Party seeks or intends to seek indemnity from Borrowers, Borrowers shall be entitled to participate in, and, to the extent that Borrowers may wish, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party; and, upon receipt of notice from Borrowers to such Indemnified Party of Borrowers’ election so to assume the defense of such claim or action and only upon approval by the Indemnified Party of such counsel (such approval not to be unreasonably withheld, conditioned or delayed), Borrowers shall not be liable to such Indemnified Party under this Section 5.1.4 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof. Notwithstanding the preceding sentence, each Indemnified Party shall be entitled to employ counsel separate from such counsel for Borrowers and from any other party in such action if such Indemnified Party reasonably determines that a conflict of interest exists which makes representation by counsel chosen by Borrowers not advisable. In such event, but only in such event, Borrowers shall pay the reasonable fees and disbursements of such separate counsel, subject to reimbursement of such costs if the Indemnified Party requiring such separate counsel for such Indemnitees is found not to be entitled to the indemnity protection of this Section 5.1.4. Borrowers shall not, without the prior written consent of an Indemnified Party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in connection with any investigative, administrative or judicial proceeding commenced or threatened, respect of which indemnification is sought hereunder (whether or not such Indemnitees shall be designated a Indemnified Party is an actual or potential party thereto)to such claim or action) unless such settlement, that may be imposed on, incurred by compromise or asserted against the Indemnitees, in any manner relating to or consent includes an unconditional release of each Indemnified Party from all liability arising out of this Agreementsuch claim, any action, suit or proceeding. No Indemnified Party shall enter into a settlement of or consent to the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement entry of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder judgment with respect to indemnified liabilities arising from any action, claim, suit or proceeding as to which an Indemnified Party would be entitled to indemnification hereunder without the gross negligence or willful misconduct prior written consent of that Indemnitee as determined Borrowers. Any amounts payable to an Indemnified Party by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions reason of the undertakings and indemnification set out in application of this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.5.1.4
Appears in 1 contract
Sources: Loan Agreement (GTJ REIT, Inc.)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Without limiting any other rights which any such Person may have hereunder or under applicable law, whether or not the transactions contemplated hereby shall be consummated, Borrower Seller hereby agrees to indemnify, pay and hold the Agent and indemnify each of the Banks Purchaser, the Liquidity Banks, the Enhancement Providers, the Backup Servicer and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks foregoing's respective Affiliates, and such holder(s) all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (collectivelyeach an " Indemnified Party "), the "Indemnitees") harmless forthwith on demand, from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative the foregoing being collectively referred to as " Indemnified Amounts ") awarded against or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or of them arising out of this Agreement, any of or relating to the other Transaction Documents or the ownership or funding of the Asset Interest or in respect of any other agreement, document or instrument executed and delivered by Borrower Receivable or any other Obligor in connection herewith or therewithContract, excluding , however , (a) Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, or (b) recourse (except as otherwise specifically provided in this Agreement) for Defaulted Receivables. Without limiting the foregoing, Seller hereby indemnifies each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the transfer by Seller of any interest in any Receivable other than the transfer of an Asset Interest to Purchaser pursuant to this Agreement and the grant of a final nonappealable order. To security interest to Purchaser pursuant to Section 9.01 ;
(ii) any representation or warranty made by Seller, UPAC (individually or as Servicer) or Parent (or any of their officers or Affiliates) under or in connection with any Transaction Document, any Settlement Statement or any other information or report delivered by or on behalf of Seller, UPAC (individually or as Servicer) or Parent pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made;
(iii) the failure by Seller or any applicable Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in Purchaser an undivided percentage ownership interest, to the extent that of the undertaking to indemnifyAsset Interest, pay and hold harmless set forth in the preceding sentence may Receivables in, or purporting to be unenforceable because it is violative in, the Receivables Pool, free and clear of any law Lien, other than a Lien arising solely as a result of an act of Purchaser or public policythe Agent, Borrower shall contribute whether existing at the maximum portion that it is permitted time of any Purchase or Reinvestment of such Asset Interest or at any time thereafter;
(v) the failure to pay and satisfy file, or any delay in filing, financing statements or other similar instruments or documents under the UCC or similar laws of any applicable law jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of any Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable's or the related Contract's not being a legal, valid and satisfaction binding obligation of all indemnified liabilities incurred by such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the Indemnitees making of loans or the sale or provision of services related to such Receivable or the furnishing or failure to furnish such loans or services;
(vii) any failure of Seller, Parent, Servicer (if UPAC or an Affiliate of UPAC) or any Originator to perform their respective duties or obligations in accordance with the provisions of this Agreement, including, without limitation, Article VIII and Sections 4.02 and 3.07(b) , or any of them. The provisions the other Transaction Documents;
(viii) any products liability claim arising out of or in connection with loans, products or services that are the subject of any Pool Receivable; (ix) any tax or governmental fee or charge (but not including taxes upon or measured by net income), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the undertakings and indemnification set out purchase or ownership of any Asset Interest, or any other interest in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.Pool Receivables or in any goods which secure any such Pool Receivables;
Appears in 1 contract
General Indemnity. In addition 18.6.1. Borrower agrees to indemnify and hold harmless Administrative Agent, each Lender, the Letter of Credit Issuer, and each of their affiliates and their respective officers, directors, employees, attorneys, representatives, agents, and advisors (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation, or proceeding or preparation of defense in connection therewith) the Loan Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans (including, without limitation, any payments made by Administrative Agent to any Person (other than Borrower) who is a party to any blocked account and/or lockbox agreement, including, without limitation, any indemnity payments by Administrative Agent thereunder), or the manufacture, storage, transportation, release or disposal of any Hazardous Material on, from, over or affecting any of the Collateral or any of the assets, properties, or operations of any Covered Person or any predecessor in interest, directly or indirectly, except to the payment extent such claim, damage, loss, liability, cost, or expense is found in a final, non-appealable judgment by a court of expenses pursuant competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 13.3applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby shall be are consummated. The Borrower agrees not to assert and agrees that it will not direct any other Covered Person to assert, any claim against any Indemnified Party, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages arising out of or otherwise relating to the Loan Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans. Borrower hereby also agrees to indemnifypay, pay indemnify and hold harmless the Agent Indemnified Parties for, from and each of the Banks and any holder(s) of the Notesagainst, and shall promptly reimburse the officersIndemnified Parties for, directorsany and all claims, employeesdamages, agents liabilities, losses, costs and affiliates expenses (including reasonable attorneys’ fees and expenses and amounts paid in settlement) incurred, paid or sustained by the Indemnified Parties, or enforcement by Administrative Agent of any of its rights with respect thereto, except to the extent such claim, damage, loss, liability, cost, or expense 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. Each Borrower covenants and agrees to assume liability for and to protect, indemnify and hold harmless the Administrative Agent, each of the Banks Lenders, and such holder(s) (collectively, the "Indemnitees") harmless Letter of Credit Issuer from and against any and all other liabilities, obligations, losses, damages, penalties, actionsclaims, judgments, suits, claimscauses of action, costs, charges and expenses and disbursements of any kind or nature whatsoever (including, including without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoattorneys’ fees), that which may be incurred by, imposed on, incurred by or asserted against the IndemniteesAdministrative Agent, any Lender, or the Letter of Credit Issuer, howsoever arising or incurred because of. out of or in connection with the disbursements of Revolving Loans, Swingline Loans, Interim Floorplan Loans, or Floorplan Loans in accordance with Section 2.10; provided, however, the liability of the Borrowers pursuant to this indemnity shall not extend to any manner relating to liability, obligation, damage, penalty, claim, cause of action, cost, charge or expense caused by or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined the Administrative Agent, the Lenders or the Letter of Credit Issuer. Borrower: (i) is obligated to pay any Loan Obligation even if any Collateral is defective or fails to conform to any warranties extended by any third party; (ii) shall not assert against Administrative Agent, any Lender, the Letter of Credit Issuer or any other Indemnified Party any claim or defense Borrower has against any third party; and (iii) indemnify and hold Administrative Agent, any Lender, the Letter of Credit Issuer and any other Indemnified Party harmless against all claims and defenses asserted by any buyer of the Collateral relating to the condition of, or any representations regarding, any of the Collateral. Borrower irrevocably waives all rights of offset and counterclaims Borrower may have against Administrative Agent, any Lender, or the Letter of Credit Issuer, except counterclaims arising in cases of Administrative Agent’s, Lender’s or the Letter of Credit Issuer’s gross negligence or willful misconduct.
18.6.2. The obligations of Borrower under this Section 18.6 shall survive the termination of the Commitments, the indefeasible full payment in cash and satisfaction of all of the Loan Obligations, and the release of the Collateral. All amounts, obligations and liabilities referred to in Section 18.6.1 shall be deemed to be a court part of competent jurisdiction in a final nonappealable orderthe Loan Obligations and shall be paid to Administrative Agent on demand.
18.6.3. To the extent that any of the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be indemnities required from Borrower under this Section are unenforceable because it is violative of they violate any law Law or public policy, Borrower shall contribute pay the maximum portion that amount which it is permitted to pay and satisfy under applicable law Law.
18.6.4. The foregoing indemnification shall not apply to the payment extent such liabilities and satisfaction of all indemnified liabilities incurred costs are determined to have resulted or been caused, in whole or in part, by the Indemnitees gross negligence or willful misconduct on the part of such Indemnified Party. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND EXCEPT AS PROVIDED BY THE IMMEDIATELY PRECEDING SENTENCE.
18.6.5. In exchange for, among other things, Administrative Agent’s agreement to make any payments to any Person (other than Borrower or a Covered Person) who is a party to any blocked account, lockbox agreement, bailee letter, landlord waiver or other similar agreement entered into in connection herewith (including any indemnity payments by Administrative Agent thereunder, collectively, “Third Person Reimbursement Agreements”), Borrower hereby indemnifies, releases, discharges and acquits forever Administrative Agent and each Lender and any of their respective officers, directors, servants, agents, employees and attorneys, past, present and future, from any and all claims, demands and causes of action, of whatever nature, whether in contract or tort, accrued or to accrue, contingent or vested, known or unknown, running in favor of Borrower or any Covered Person arising out of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementor relating to such Third Person Reimbursement Agreements, except those arising from Administrative Agent’s or any Lender’s gross negligence or willful misconduct.
Appears in 1 contract
Sources: Credit Facilities Agreement (MTM Technologies, Inc.)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to The Operator will indemnify, pay defend and hold the Agent and each of the Banks and any holder(s) of the NotesAuthority, Escrow Bank and the officersSenior Lenders, directorsacting through the Senior Lenders' Representative, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilitiesproceedings, obligationsactions and third party claims for any loss, lossesdamage, damages, penalties, actions, judgments, suits, claims, costs, expenses cost and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or expense arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered breach by the Agent or any of the Banks, the agreement Operator of any of the Banks to make the Loans hereunder, the agreement its obligations under this Agreement or on account of Mercantile to issue the Letters of Credit hereunder or the use or intended use failure of the proceeds Operator to comply with Applicable Laws and Applicable Permits. The Authority will indemnify, defend and hold the, Operator harmless against any and all proceedings, actions and third party claims for any loss, damage, cost and expense arising out of failure of the Authority to fulfill any Loan of its obligations under this Agreement materially and adversely affecting the performance of the Operator's obligations under the Agreement or this Agreement other than any loss, damage, cost and expense arising out of acts done in discharge of their lawful functions by the Authority, its officers, servants and agents. The Escrow Bank will indemnify, defend and hold the Operator harmless against any and all proceedings, actions and third party claims for any loss, damage, cost and expense arising out of failure of the Escrow Bank to fulfill its obligations under this Agreement materially and adversely affecting the performance of the Operator's obligations under the Agreement other than any loss, damage, cost and expense, arising out of acts done in discharge of their lawful functions by the Escrow Bank, its officers, servants and agents. In the event that any Party hereto receives a claim from a third party in respect of which it is entitled to the benefit of an indemnity under Clause 9.1 or in respect of which it is entitled to reimbursement (the “Indemnified Party”), it shall notify the other Party responsible for indemnifying such claim hereunder (collectivelythe “Indemnifying Party”) within 15 (fifteen) Days of receipt of the claim and shall not settle or pay the claim without the prior approval of the Indemnifying Party, which approval shall not be unreasonably withheld or delayed. In the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent event that the undertaking Indemnifying Party wishes to indemnifycontest or dispute the claim, pay and hold harmless set forth it may conduct the proceedings in the preceding sentence may be unenforceable because it is violative name of any law or public policy, Borrower the Indemnified Party and shall contribute bear all costs involved in contesting the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of themsame. The provisions of Indemnified Party shall provide all cooperation and assistance in contesting any claim and shall sign all such writings and documents as the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this AgreementIndemnifying Party may reasonably require.
Appears in 1 contract
Sources: Operation and Maintenance Agreement
General Indemnity. In addition to The Borrowers shall indemnify the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Lenders and hold the Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Borrowers of Section 2.5 and from and against all losses, costs and expenses, incurred in liquidating or employing deposits from third parties acquired or arranged, or in terminating or unwinding any contract entered into, or order to effect or fund the whole or any part of any drawing or any overdue amount hereunder incurred by any Lender as a consequence of any Default or Event of Default or the repayment of any amount due hereunder other than at the expiration of an Interest Period. In addition, the Borrowers shall indemnify each of the Banks and any holder(s) of the NotesLender, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks Lenders’ or the Agent’s directors, officers and such holder(s) employees, and each Person, if any, who controls any Lender or the Agent (collectivelyeach Lender, the "Indemnitees"Agent and each of such directors, officers, employees and control Persons is referred to as an “Indemnified Party”) and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses (including reasonable fees of and disbursements to counsel with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any kind Indemnified Party may incur or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party’s compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving any Borrower or any Subsidiary, or any of their Affiliates, (b) any litigation or investigation involving any Borrower, any Subsidiary or any of their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to any collateral for the Credit Obligations in accordance with the Credit Documents, or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, including the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use he application of the proceeds of any Loan of the Loans made hereunder (collectivelyor of the payment or any presentation under any of the Letters of Credit issued hereunder; provided, however, that the "indemnified liabilities"); provided that Borrower foregoing indemnity shall have no obligation not apply to an Indemnitee litigation commenced by the Borrowers against the Lenders or the Agent which seeks enforcement of any of the rights of the Borrowers hereunder with respect or under any other Credit Document and is determined adversely to indemnified the Lenders or the Agent in a final nonappealable judgment or to the extent such claims, damages, liabilities arising and expenses result from a Lender’s or the Agent’s gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Ch2m Hill Companies LTD)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby Developer agrees to indemnify, pay pay, defend and hold the Agent and each of the Banks and any holder(s) of the NotesCity, and the officers, directorsits elected and appointed officials, employees, agents and affiliates of (individually an AIndemnitee,@ and collectively the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees"AIndemnitees@) harmless from and against against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, and including without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees Indemnities shall be designated a party thereto), that may be imposed on, suffered, incurred by or asserted against the Indemnitees, Indemnitees in any manner relating to or arising out of:
(i) the Developer=s failure to comply with any of the terms, covenants and conditions contained within this Agreement; or
(ii) the Developer=s or any contractor=s failure to pay General Contractors, subcontractors or materialmen in connection with the TIF-Funded Improvements or any other Project improvement; or
(iii) the existence of any material misrepresentation or omission in this Agreement, any of offering memorandum or information statement or the other Transaction Documents Redevelopment Plan or any other agreementdocument related to this Agreement that is the result of information supplied or omitted by the Developer or any Affiliate of Developer or any agents, document employees, contractors or instrument executed and delivered by Borrower persons acting under the control or at the request of the Developer or any Affiliate of Developer; or
(iv) the Developer=s failure to cure any misrepresentation in this Agreement or any other Obligor in connection herewith or therewithagreement relating hereto; provided, the statements contained in any commitment letters delivered by the Agent or any of the Bankshowever, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower Developer shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence wanton or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderIndemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower Developer shall contribute the maximum portion that it is permitted to pay and satisfy under the applicable law law, to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 13.01 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.
Appears in 1 contract
Sources: Redevelopment Agreement
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether Without limiting any other rights that any such Person may have hereunder or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever under applicable law (including, without limitation, the reasonable fees and disbursements right to recover damages for breach of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretocontract), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating Borrower hereby agrees to or arising out of this Agreement, any indemnify each of the other Transaction Documents or any other agreementAgent and the Lender and, document or instrument executed each of their respective Affiliates, members, and delivered by Borrower or any other Obligor in connection herewith or therewithall successors, the statements contained in any commitment letters delivered by the Agent or any of the Bankstransferees, the agreement participants and assigns and all officers, directors, employees, advisors and agents of any of the Banks foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including attorneys' fees and disbursements (all of the foregoing being collectively referred to make as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder Transaction Documents or the use or intended use funding of the proceeds Advances or in respect of any Loan hereunder (collectivelyPledged Student Loan, excluding, however, Indemnified Amounts to the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as extent determined by a court of competent jurisdiction in a final nonappealable orderto have resulted from gross negligence or willful misconduct on the part of such Indemnified Party. To Without limiting the extent that foregoing, the undertaking to indemnify, pay and hold harmless set forth Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the adjustment or any non-cash reduction in the preceding sentence may be unenforceable because it is violative outstanding Principal Balance of any law Pledged Student Loan other than as expressly permitted hereunder or public policyunder the applicable Servicing Agreement;
(ii) the transfer by the Borrower of any interest in the Collateral other than the grant of the security interest granted to the Agent, for the benefit of Lenders and the other Secured Parties, pursuant to Section 1.03;
(iii) any representation or warranty made or deemed made by the Borrower (or any of its officers or Affiliates) under or in connection with any Transaction Document or any other information or report delivered by or on behalf of the Borrower pursuant hereto, which shall contribute have been false, incorrect or misleading in any respect when made or deemed made;
(iv) the maximum portion that it is permitted failure by the Borrower to pay comply with any applicable law, rule or regulation with respect to any Pledged Student Loan or the nonconformity of any Pledged Student Loan with any such applicable law, rule or regulation, including in each case (without limitation) failure to comply with the Equal Credit Opportunity Act, the Fair Debt Collection Practices Act, the Truth in Lending Act, the Federal Trade Commission Act, the Federal Reserve Board's Regulation B, applicable laws relating to usury, truth-in-lending, education lending, fair credit billing, fair credit reporting, fair debt collection practices, privacy, consumer credit protection and satisfy disclosure and other applicable consumer credit laws and equal credit opportunity laws;
(v) the failure to vest and maintain vested in the Agent, for the benefit of the Secured Parties, a first priority perfected security interest, in the Collateral, free and clear of any Lien, other than a Lien arising solely as a result of an act of the Lenders or the Agent, whether existing at the time of any Borrowing or at any time thereafter;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable law jurisdiction or other applicable laws with respect to any item of the Collateral, whether at the time of any Borrowing or at any time thereafter;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment and satisfaction of all indemnified liabilities incurred any Student Loan in, or purporting to be in, the Collateral, any diminution in value of the Collateral, or any other claim brought by any Person, in each case, arising from any activity or inactivity by the Indemnitees Borrower or an Affiliate of the Borrower in connection with the Collateral (including, without limitation, a defense based on such Student Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or any defense based on the failure to comply with the Equal Credit Opportunity Act, the Fair Debt Collection Practices Act, the Truth in Lending Act, the Federal Trade Commission Act, the Federal Reserve Board's Regulation B, applicable laws relating to usury, truth-in-lending, education lending, fair credit billing, fair credit reporting, fair debt collection practices, privacy, consumer credit protection and disclosure and other applicable consumer credit laws and equal credit opportunity laws);
(viii) the introduction after the Closing Date of, or any change after the Closing Date in, the interpretation or administration of them. The provisions any law, rule or regulation that results in any tax or governmental fee or charge (but not including taxes upon or measured by net income or gross revenues), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the undertakings Advances, or any interest in the item of the Collateral;
(ix) the failure by the Borrower to comply with any term, provision or covenant contained in any Transaction Document to which it is party;
(x) any Lien (other than the Lien granted to the Agent under this Agreement) attaching to any Student Loan or any Related Security or Collections with respect thereto, arising in connection with any action or inaction by the Borrower or any Affiliate of the Borrower whether existing at the time that such Student Loan initially arose or at any time thereafter;
(xi) any claim or action of whatever sort arising out of or in connection with the servicing of any Student Loan to the extent such servicing was provided by the Borrower or an Affiliate of the Borrower or, if such servicing was provided by a Person not the Borrower or an Affiliate of the Borrower, to the extent the Borrower is entitled to recover such Indemnified Amounts from such non-Affiliate or another Person;
(xii) the failure to pay when due any taxes and indemnification set out fees payable by the Borrower or any Originator in connection with the Collateral or the execution, delivery, filing and recording of this Section 13.5 shall survive satisfaction Agreement or the other agreements and documents to be delivered hereunder (including any UCC financing statements);
(xiii) the payment by such Indemnified Party of taxes, including, without limitation, any taxes imposed by any jurisdiction on amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, to the extent caused by the Borrower's Obligations and the termination actions or failure to act in breach of this Agreement, excluding, however, any taxes which the Borrower is expressly not obligated to pay pursuant to Sections 2.06 and 4.02;
(xiv) the commingling of Collections with any other funds of the Borrower or any Affiliate of the Borrower;
(xv) any failure by the Borrower to give reasonably equivalent value to any Originator in consideration for the transfer by such Originator to the Borrower of any Student Loans, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xvi) any investigation, litigation or proceeding arising out of or related to this Agreement or the use of proceeds of the Advances made pursuant to this Agreement or any other Transaction Document delivered hereunder or in respect of any of the Student Loans related hereto;
(xvii) the sale or pledge by the Borrower or any Affiliated Originator of any Student Loan in violation of any applicable law, rule or regulation. Any amounts subject to the indemnification provisions of this Section 11.01 shall be paid by the Borrower to the related Indemnified Party within five (5) Business Days following demand therefor accompanied by reasonable supporting documentation with respect to such amounts.
Appears in 1 contract
Sources: Credit Agreement (Mru Holdings Inc)
General Indemnity. In addition The Corporation agrees:
(a) Expanded Indemnity - except in respect of an action by or on behalf of the Corporation or an Interested Corporation to procure a judgment in its favour against the Indemnified Party, or as otherwise provided herein, to indemnify and save the Indemnified Party harmless, to the payment full extent permitted by law, including but not limited to that under the Canada Business Corporations Act, as the same exists on the date hereof or may hereafter be amended (but, in the case of expenses pursuant such amendment, only to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees extent that such amendment permits the Corporation to indemnify, pay and hold provide broader indemnification rights than the Agent and each of the Banks and any holder(slaw permitted prior to such amendment) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses charges, expenses, fees, loss, damages or liabilities (including legal or other professional fees), without limitation, and disbursements whether incurred alone or jointly with others, which the Indemnified Party may suffer, sustain, incur or be required to pay arising out of or incurred in respect of any kind action, suit, proceeding, investigation or nature whatsoever claim which may be brought, commenced, made, prosecuted or threatened against the Indemnified Party or any of the other directors or officers of the Corporation, an Interested Corporation or Other Entity, for or in respect of any claim to which he is made a party by being or having been a director or officer of the Corporation, an Interested Corporation or Other Entity or which the Indemnified Party may be required to participate in or provide evidence in respect of (any of the same hereinafter being referred to as a "Claim") howsoever arising and whether arising in law, equity or under statute, regulation or governmental ordinance of any jurisdiction or any act, deed, matter or thing done, made, permitted or omitted by the Indemnified Party arising out of, or in connection with the affairs of the Corporation, the Interested Corporation or Other Entity or the exercise by the Indemnified Party of his powers or the performance of his duties as a director or officer of the Corporation, an Interested Corporation or Other Entity including, without limitation, any and all costs, charges, expenses, fees, loss, damages or liabilities which the reasonable fees and disbursements of counsel for such Indemnitees Indemnified Party may suffer, sustain or incur or be required to pay in connection with investigating, initiating, defending, appealing, preparing for, providing evidence in, instructing and receiving the advice of his own or other counsel, or any investigativeamount paid to settle any claim or satisfy any judgment, fine or penalty, provided that the indemnity provided for in this Section 1(a) will only be available provided:
(i) the Indemnified Party was acting honestly and in good faith with a view to the best interests of the Corporation, the Interested Corporation or Other Entity, as the case may be;
(ii) in the case of a criminal or administrative action or judicial proceeding commenced that is enforced by monetary penalty, in so acting, the Indemnified Party had reasonable grounds for believing that his conduct was lawful; and
(b) Indemnity as of Right - notwithstanding anything herein, an Indemnified Party is entitled to indemnity from the Corporation in respect of all costs, charges and expenses reasonably incurred by him in connection with the defence of any civil, criminal or threatened, whether administrative action or not such Indemnitees shall be designated proceeding to which he is made a party thereto), that may be imposed on, incurred by reason of his being or asserted against the Indemnitees, in any manner relating to having been a director or arising out of this Agreement, any officer of the other Transaction Documents Corporation or any other agreementan Interested Corporation, document or instrument executed and delivered by Borrower or any other Obligor if the Indemnified Party:
(i) was substantially successful on the merits in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any his defence of the Banks, action or proceeding; and
(ii) fulfils the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification conditions set out in this Section 13.5 shall survive satisfaction 1(a)(i) and payment of Borrower's Obligations and the termination of this Agreement(ii) above.
Appears in 1 contract
General Indemnity. In addition Borrower agrees that while ▇▇▇▇▇▇ has no liability to any person in tort or otherwise as lender and that Lender is not an owner or operator of the Property, Borrower shall, at its sole expense (but subject to the payment provisions of expenses pursuant to Section 13.38.01 above), whether or not the transactions contemplated hereby shall be consummatedprotect, Borrower hereby agrees to indemnifydefend, pay release, indemnify and hold harmless (“indemnify”) the Agent Indemnified Parties from any Losses (defined below) imposed on, incurred by, or asserted against the Indemnified Parties, directly or indirectly, arising out of or in connection with the Property, the Loan, or the Documents, including Losses; provided, however, that the foregoing indemnities shall not apply to any Losses caused by (i) the gross negligence of Lender, (ii) the willful misconduct of Lender, (iii) an illegal act by ▇▇▇▇▇▇, or (iv) fraud on the part of Lender; and each provided further that the foregoing indemnities shall not apply to claims brought by or on behalf of Lender or any of the Banks and other Indemnified Parties unless such claims are for indemnification against claims imposed on, incurred by, or asserted against Lender or such other Indemnified Parties by a third party. The term “Losses” shall mean any holder(s) of the Notesclaims, and the officerssuits, directorsliabilities (including strict liabilities), employeesactions, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilitiesproceedings, obligations, lossesdebts, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever losses (including, without limitation, unrealized loss of value of the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoProperty), that may be imposed onCosts, incurred by expenses, fines, penalties, charges, fees, judgments, awards, and amounts paid in settlement of whatever kind including attorneys’ fees (both in-house staff and retained attorneys) and all other costs of defense. The term “Indemnified Parties” shall mean (a) Lender, (b) any prior owner or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any holder of the other Transaction Documents Note, (c) any existing or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any prior servicer of the BanksLoan, (d) Trustee, (e) the agreement officers, directors, shareholders, partners, members, employees and trustees of any of the Banks to make foregoing, and (f) the Loans hereunderheirs, the agreement legal representatives, successors and assigns of Mercantile to issue the Letters of Credit hereunder or the use or intended use each of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementforegoing.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing (Saul Centers Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3Each Borrower and each Security Guarantor shall, whether or not the transactions contemplated hereby shall be consummatedat its sole cost and expense, Borrower hereby agrees to protect, defend, indemnify, pay release and hold the Agent and each of the Banks and any holder(sharmless Lender Indemnitees (defined below) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgmentsclaims, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever liabilities (including, without limitation, the strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, and awards actually incurred by such Lender Indemnitees (including but not limited to reasonable third-party attorneys’ fees and disbursements other costs of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretodefense), but excluding all punitive, consequential, special and treble damages except to the extent actually incurred by any Lender Indemnitees to an unrelated third party (collectively, the “Losses”) that may be imposed on, upon or incurred by or asserted against the Indemnitees, in any manner relating to Lender Indemnitees and directly or indirectly arising out of this Agreement, or in any way relating to any one or more of the other Transaction Documents following: (a) any breach by Borrower and/or Security Guarantor of its obligations under, or any other agreement, document or instrument executed and delivered material misrepresentation by Borrower and/or Security Guarantor contained in, this Agreement or any the other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or Loan Documents; (b) the use or intended use of the proceeds of any Loan hereunder the Loan; (collectivelyc) ownership of the Security Instrument, the "indemnified liabilities")Debenture, the Property or any interest therein or receipt of any Rents; provided (d) any amendment to, or restructuring of, the Debt, and the Note, this Agreement, the Security Instrument, the Debenture, or any other Loan Documents; (e) any and all lawful action that may be taken by Agent not in contravention of the Loan Documents in connection with the enforcement of the provisions of this Agreement, the Security Instrument, the Security Guaranty, the Note or any of the other Loan Documents, whether or not suit is filed in connection with same, or in connection with Borrower, any guarantor or indemnitor and/or any partner, joint venturer or shareholder thereof becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding; (f) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (g) any use, nonuse or condition in, on or about the Property; (h) [intentionally omitted]; (i) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (j) the failure of any person to file timely with the Internal Revenue Service an accurate Form 1099-S, Proceeds from Real Estate Transactions, or Form ▇▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from Real Estate Broker and Barter Exchange Transactions, which may be required in connection with the Security Instrument, or to supply a copy thereof in a timely fashion to the recipient of the proceeds of the transaction in connection with which the Security Instrument is made; (k) any failure of the Property to be in compliance with any Legal Requirements; (l) the enforcement by any Lender Indemnitees of the provisions of this Section 11.13; (m) any and all claims and demands whatsoever which may be asserted against Agent and/or Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; or (n) the payment of any commission, charge or brokerage fee to anyone claiming through Borrower and/or Security Guarantor which may be payable in connection with the funding of the Loan; ; provided, however, that neither Borrower nor Security Guarantor shall have no any obligation to an Indemnitee the Lender Indemnitees hereunder with respect to indemnified liabilities arising the extent that such Losses arise (i) from the gross negligence negligence, illegal acts, fraud or willful misconduct of that Indemnitee as determined the Lender Indemnitees, (ii) to the extent any of the foregoing relate to the period subsequent to (A) the acceptance by Agent, any Lender or their designee of a court deed-in-lieu of competent jurisdiction in a final nonappealable orderforeclosure with respect to the Property, or (B) the foreclosure of any Security Instrument (with respect to such Property), or (iii) from any claims and/or actions solely between the Lenders and/or Agent. To the extent that the undertaking to indemnify, pay defend and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of violates any law or public policy, Borrower and/or Security Guarantor shall contribute pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities Losses incurred by the Indemnitees or any of themLender Indemnitees. The provisions Any amounts payable to Agent and/or Lender by reason of the undertakings and indemnification set out in application of this Section 13.5 11.13 shall survive satisfaction become immediately due and payment of Borrower's Obligations payable and shall bear interest at the termination of this AgreementDefault Rate from the date loss or damage is sustained by Lender Indemnitees until paid.
Appears in 1 contract
General Indemnity. In addition to The Borrower shall indemnify the payment Administrative Agent (and any sub-agent thereof) and each Lender, each Swap Lender, each Cash Management Lender, each Creditcard Lender and each Related Party of expenses pursuant to Section 13.3any of the foregoing Persons (each such Person being called an “Indemnitee”) against, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the NotesIndemnitee harmless from, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilitieslosses, obligations, lossesclaims, damages, penaltiesliabilities and related expenses (including the fees, actions, judgments, suits, claims, costs, expenses charges and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party theretoIndemnitee), that may be imposed on, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the IndemniteesBorrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in any manner relating to connection with, or arising out as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the other Transaction Documents transactions contemplated hereby or thereby, (ii) any Accommodation or the use or proposed use of the proceeds therefrom, or (iii)any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other agreementtheory, document whether brought by a third party or instrument executed and delivered by the Borrower or any other Obligor in connection herewith or therewithLoan Party, the statements contained in and regardless of whether any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities")Indemnitee is a party thereto; provided that Borrower such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising resulted from the gross negligence or willful wilful misconduct of that such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementjurisdiction.
Appears in 1 contract
Sources: Amended and Restated Credit Agreement (Sundial Growers Inc.)
General Indemnity. In addition to (a) Each Party (the payment of expenses pursuant to Section 13.3“Indemnifying Party”) shall defend, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay indemnify and hold harmless the Agent and each of the Banks and any holder(s) of the Notes, other Party and the directors, officers, directorsshareholders, employeespartners, agents members, agents, employees and affiliates of the Agent, each of the Banks and such holder(s) other Party (collectively, the "Indemnitees") harmless “Indemnified Parties”), from and against any all loss, damage, expense, liability and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costsincluding court costs and reasonable attorneys’ fees (collectively, expenses “Liabilities”) suffered or incurred by the Indemnified Parties resulting from (i) injury to or death of persons, and disbursements damage to or loss of property to the extent caused by the Indemnifying Party, (ii) any violation of any kind applicable law by the Indemnifying Party, (iii) the intentional or nature whatsoever negligent acts or omissions of the Indemnifying Party, its subcontractors, or any person or entity directly employed by either of them, or any person or entity for whose acts any of either of them are liable, (including, without limitation, the reasonable fees vi) all claims and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or liens arising out of this Agreement, the Indemnifying Party’s unpaid accounts and (vii) any failure of the other Transaction Documents or any other agreementIndemnifying Party to pay taxes for which it is responsible; provided, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithhowever, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower an Indemnifying Party shall have no obligation liability for any Liabilities to an Indemnitee hereunder with respect to indemnified liabilities arising the proportionate extent resulting from the gross Indemnified Party’s performance or non-performance under this Agreement or the negligence or willful misconduct of that Indemnitee as determined such Indemnified Party.
(b) The Indemnified Party shall give the Indemnifying Party written notice with respect to any Liability asserted by a court third party (a “Claim”), as soon as reasonably practicable after the receipt of competent jurisdiction information of any possible Claim or of the commencement of such Claim. The Indemnifying Party shall assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party. The Indemnifying Party shall have the right to direct the defense or settlement of any such Claim in a final nonappealable ordermanner which is not prejudicial to the interests of the Indemnified Party, and the Indemnified Party shall not settle any aspect of a Claim without the prior written approval of the Indemnifying Party. To The Indemnifying Party shall have no liability under this Section 15.1 for any Claim for which such notice is not provided, to the extent that the undertaking failure to indemnify, pay and hold harmless give such notice actually prejudices the Indemnifying Party. The provision of this Section 15.1(b) shall also apply to the indemnification provisions set forth in Section 15.2. [***] Confidential information has been omitted and filed separately with the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted Securities and Exchange Commission pursuant to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementa confidential treatment request.
Appears in 1 contract
General Indemnity. In addition Without limiting any other rights which any such Person may have hereunder or under Applicable Law, but subject to the payment of expenses pursuant to Section 13.3Sections 12.1(b) and 13.5, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby Seller agrees to indemnify, pay indemnify and hold harmless Administrative Agent, each Program Administrator, each Purchaser, each Purchaser Agent, each Enhancement Provider, each Liquidity Provider, each other Affected Party, any sub-agent of Administrative Agent, any Purchaser Agent, any assignee or successor of any of the Agent foregoing and each of the Banks and any holder(s) of the Notestheir respective Affiliates, and the officersall directors, members, managers, directors, employeesshareholders, officers, employees and attorneys or agents and affiliates of any of the Agentforegoing (each an “Indemnified Party”), each of the Banks and such holder(s) (collectivelyforthwith on demand, the "Indemnitees") harmless from and against any and all other liabilities, obligationsdamages, losses, damages, penalties, actions, judgments, suits, claims, costsliabilities and related costs and expenses (including all filing fees), expenses including reasonable attorneys’, consultants’ and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable accountants’ fees and disbursements but excluding all Excluded Taxes other than any amounts reimbursable pursuant to Section 4.3 (all of counsel for such Indemnitees the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this AgreementTransaction Documents, any of the other Transaction Documents transactions contemplated thereby, or the ownership, maintenance or funding, directly or indirectly, of the Asset Interest (or any part thereof) or in respect of or related to any Seller Assets, including Pool Assets or any Related Assets or otherwise arising out of or relating to or resulting from the actions or inactions of Seller, any Originator, Servicer, CHS, Performance Guarantor or any other agreementparty to a Transaction Document; provided, document however, notwithstanding anything to the contrary in this Article XII, in all events there shall be excluded from the foregoing indemnification any damages, claims, losses, costs, expenses, liabilities or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, Indemnified Amounts to the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder extent resulting from (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from x) the gross negligence or willful misconduct of that Indemnitee an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction in a final nonappealable orderor (y) the failure of an Account Debtor or Obligor to pay any sum due under its Pool Assets by reason of the financial or credit condition of such Account Debtor or Obligor (including the occurrence of an Insolvency Event with respect to the applicable Account Debtor or Obligor). To Without limiting the extent that the undertaking to foregoing, Seller shall indemnify, pay subject to the express limitations set forth in this Section 12.1, and hold harmless set forth each Indemnified Party for any and all Indemnified Amounts arising out of, relating to or resulting from:
(i) Any Pool Asset treated as or represented by Seller or Servicer to be an Eligible Receivable or Eligible Loan, as applicable, which is not at the applicable time an Eligible Receivable or Eligible Loan, as applicable;
(ii) the transfer by Seller or any Originator of any interest in any Pool Asset other than the transfer of any Pool Asset and Related Assets to Administrative Agent and any Purchaser pursuant to this Agreement, to Administrative Agent and to Seller pursuant to the Sale Agreement and the grant of a security interest to Administrative Agent pursuant to this Agreement and to Seller pursuant to the Sale Agreement;
(iii) any representation or warranty made by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) (or any of their respective officers or Affiliates) under or in connection with any Transaction Document, any Information Package or any other information or report delivered 753697831 by or on behalf of Seller pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iv) the failure of Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to comply with the terms of any Transaction Document or any Applicable Law (including with respect to any Pool Asset or Related Assets), or the nonconformity of any Pool Asset or Related Assets with any such Applicable Law;
(v) the lack of an enforceable ownership interest, or a first priority perfected security interest, in the preceding sentence may be unenforceable because it is violative Pool Assets (and all Related Assets) against all Persons (including any bankruptcy trustee or similar Person);
(vi) the failure to file, or any delay in filing of, financing statements or other similar instruments or documents under the UCC of any law applicable jurisdiction or public policyunder any other Applicable Laws with respect to any Pool Asset whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vii) any dispute, Borrower shall contribute claim, offset or defense (other than discharge in bankruptcy) of the maximum portion that it is permitted to pay and satisfy under applicable law Account Debtor or Obligor, as applicable, to the payment of any Pool Asset in, or purporting to be in, the Asset Pool (including a defense based on such (x) Pool Receivable’s or the related Receivable Documentation’s or (y) Pool Loan’s or the related Loan Documents’ not being a legal, valid and satisfaction binding obligation of such Account Debtor or Obligor, as applicable, enforceable against it in accordance with its terms) or any other claim resulting from the sale of the merchandise or services related to such Pool Asset or the furnishing or failure to furnish such merchandise or services;
(viii) any suit or claim related to the Pool Assets or any Transaction Document (including any products liability or environmental liability claim arising out of or in connection with merchandise or services that are the subject of any Pool Asset to the extent not covered pursuant to Section 13.5), other than any such suit or claim that arises as a result of the failure of any Account Debtor or Obligor, as applicable, to pay any sum due under its Pool Asset by reason of the financial or credit condition of such Account Debtor or Obligor (including the occurrence of an Insolvency Event with respect to the applicable Account Debtor or Obligor);
(ix) the ownership, delivery, non-delivery, possession, design, construction, use, maintenance, transportation, performance (whether or not according to specifications), operation (including the failure to operate or faulty operation), condition, return, sale, repossession or other disposition or safety of any Related Assets (including claims for patent, trademark, or copyright infringement and claims for injury to persons or property, liability principles, or otherwise, and claims of breach of warranty, whether express or implied);
(x) the failure by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to notify any Account Debtor or Obligor of the assignment pursuant to the terms hereof of any Pool Asset to Administrative Agent for the benefit of Purchasers or the failure to require that payments (including any under the related insurance policies) be made directly to Administrative Agent for the benefit of Purchasers; 753697831
(xi) failure by Seller, CHS or any other party to a Transaction Document (other than such Indemnified Party) to comply with the “bulk sales” or analogous laws of any jurisdiction;
(xii) any Taxes (other than Excluded Taxes) imposed upon any Indemnified Party or upon or with respect to the Pool Assets, all indemnified liabilities incurred interest and penalties thereon or with respect thereto, and all costs and expenses related thereto or arising therefrom, including the fees and expenses of counsel in defending against the same;
(xiii) any loss arising, directly or indirectly, as a result of the imposition of sales or similar transfer type taxes or the failure by Seller, any Originator, Performance Guarantor or Servicer to timely collect and remit to the Indemnitees appropriate authority any such taxes;
(xiv) any commingling of any Collections by Seller, any Originator, Performance Guarantor or Servicer relating to the Pool Assets with any of their funds or the funds of any other Person;
(xv) any failure by Seller, CHS, any Originator, Performance Guarantor or any other party to a Transaction Document (other than such Indemnified Party) to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(xvi) the failure or delay to provide any Account Debtor or Obligor with an invoice or other evidence of indebtedness;
(xvii) any inability of any Originator or Seller to assign any Pool Asset or Related Asset as contemplated under the Transaction Documents; or the violation or breach by any Originator, Seller, Servicer, Performance Guarantor or any of them. The provisions their respective Affiliates of any confidentiality provision, or of any similar covenant of non-disclosure, or any other Indemnified Amount with respect to or resulting from any such violation or breach; or
(xviii) any civil penalty or fine assessed by OFAC or any other Governmental Authority administering any Anti-Terrorism Law, Anti-Corruption Law or Sanctions, and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with defense thereof by, any Indemnified Party in connection with the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment Transaction Documents as a result of Borrower's Obligations and the termination any action of this AgreementSeller, CHS, any Originator, Performance Guarantor or any of their respective Affiliates.
Appears in 1 contract
General Indemnity. In addition to The Company shall indemnify the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent Lender and each of the Banks and any holder(s) of the NotesLender's directors, and the officers, directors, employees, agents agents, attorneys, accountants, consultants and affiliates of each Person, if any, who controls the Agent, Lender (each Lender and each of the Banks such directors, officers, employees, agents, attorneys, accountants, consultants and such holder(s) (collectively, the control Persons is referred to as an "IndemniteesINDEMNIFIED PARTY") and hold each of them harmless from and against any and all other liabilities, obligations, lossesclaims, damages, penalties, actions, judgments, suits, claims, costs, liabilities and reasonable expenses and disbursements of any kind or nature whatsoever (including, without limitation, the including reasonable fees and disbursements of counsel for such Indemnitees with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (a) the Indemnified Party's compliance with or contest of any investigative, administrative subpoena or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted other process issued against the Indemnitees, it in any manner relating proceeding involving the Company or any of its Subsidiaries or their affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the collateral under the Credit Documents or arising out of (d) this Agreement, any of the other Transaction Documents Credit Document or any other agreementtransaction contemplated hereby or thereby; PROVIDED, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithHOWEVER, that the statements contained in any commitment letters delivered foregoing indemnity shall not apply to litigation commenced by the Agent or any of Company against the Banks, the agreement Lender which seeks enforcement of any of the Banks to make rights of the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit Company hereunder or under any other Credit Document and is determined adversely to the use Lender in a final nonappealable judgment or intended use of to the proceeds of any Loan hereunder (collectivelyextent such claims, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified damages, liabilities arising and expenses result from the Indemnified Party's own gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
Sources: Discretionary Demand Credit Agreement (Nextera Enterprises Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, The Borrower hereby agrees to indemnify, pay indemnify and hold harmless the Agent Lender, and each of the Banks and any holder(s) of the Notesits Affiliates, and the Subsidiaries, and its respective officers, directors, employees, employees and agents and affiliates of the Agent, (each of the Banks and such holder(s) (collectively, the an "IndemniteesIndemnified Party") harmless from and against any and all other liabilities, obligationsobligations , losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable disbursements and the fees and disbursements (on a solicitor-client basis) of one legal counsel (unless it would be inappropriate for one counsel to represent all Indemnified Parties due to a conflict of interest or otherwise in which case, all legal counsel for such Indemnitees each Indemnified Party) in connection with any investigative, administrative or judicial proceeding commenced or threatenedproceedings, whether or not such Indemnitees shall any Indemnified Party will be designated a party thereto), that (collectively, "Losses") which may be imposed on, incurred by by, or asserted against the Indemniteesagainst, any Indemnified Party (whether direct, indirect or consequential and whether based on any federal, provincial, state or local laws or regulations, including, without limitation, securities, environmental and commercial laws and regulations, under common law or in equity, or based on contract or otherwise) in any manner relating to or arising out of this Agreement, any of the other Transaction Documents Agreement or any other agreementLoan Document, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith act, event or therewithtransaction related or attendant thereto, the statements contained in any commitment letters delivered by making and/or the Agent or any management of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder Loan or the use or intended use of the proceeds of any Loan hereunder (collectivelythe Loan; provided, however that the "indemnified liabilities"); provided that Borrower shall will have no obligation hereunder to an Indemnitee hereunder with respect any Indemnified Party to indemnified liabilities arising the extent that such Losses were caused by or resulted from the wilful misconduct or gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable ordersuch Indemnified Party. To the extent that the undertaking to indemnify, pay and hold harmless indemnify set forth in the preceding sentence may be unenforceable against the Borrower because it is violative of violates any law or public policy, the Borrower shall contribute will satisfy such undertaking to the maximum portion that it is extent permitted by Applicable Law. Any Losses covered by this indemnity will be paid to pay and satisfy under applicable law each Indemnified Party on demand, and, failing prompt payment, will, together with interest thereon at the Deemed Interest Rate from the date incurred by each Indemnified Party until paid in full, be added to the payment Obligations and satisfaction of all indemnified liabilities incurred be secured by the Indemnitees or any of themCollateral. The provisions of the undertakings and indemnification set out in this Section 13.5 shall 12.1 will survive the satisfaction and payment of Borrower's all Obligations and the termination of this Agreement.
Appears in 1 contract
General Indemnity. In addition to (a) Indemnification by the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Company. The Company will indemnify and hold ------------------------------ harmless the Agent Purchaser, each of its directors, fund managers and officers, and each person, if any, who controls the Purchaser within the meaning of Section 15 of the Banks and any holder(sSecurities Act or Section 20(a) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless Exchange Act from and against any and all other liabilitieslosses, obligations, lossesclaims, damages, penaltiesliabilities and expenses (including reasonable costs of defense and investigation and all reasonable attorneys' fees) to which the Purchaser, actionseach of its directors, judgmentsfund managers and officers, suitsand each person, if any, who controls the Purchaser may become subject, under the Securities Act or otherwise, insofar as such losses, claims, costsdamages, liabilities and expenses and disbursements (or actions in respect thereof) arise out of or are based upon, (i) any kind untrue statement or nature whatsoever alleged untrue statement of a material fact contained, or incorporated by reference, in the Registration Statement relating to Common Stock being sold to the Purchaser (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees including any Prospectus Supplement filed in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated the transactions contemplated hereunder which are a party theretopart of it), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreementamendment or supplement to it, document or instrument executed and delivered by Borrower (ii) the omission or alleged omission to state in that Registration Statement or any other Obligor document incorporated by reference in connection herewith the Registration Statement, a material fact required to be stated therein or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks necessary to make the Loans hereunderstatements therein not misleading, provided -------- that the agreement of Mercantile Company shall not be liable under this Section 8.1(a) to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided extent that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in shall have determined by a final nonappealable order. To judgment (with no appeals available) that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act, undertaken or omitted to be taken by the extent Purchaser or such person through its bad faith or willful misconduct; provided, however, that the undertaking foregoing indemnity shall not apply to indemnify-------- any loss, pay claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and hold harmless set forth in conformity with written information furnished to the Company by the Purchaser expressly for use in the preceding sentence may be unenforceable because it is violative of Registration Statement, any law preliminary prospectus or public policythe Prospectus (or any amendment or supplement thereto); and provided, Borrower shall contribute the maximum portion further, -------- that it is permitted to pay and satisfy under applicable law with respect to the payment Prospectus, the foregoing indemnity shall not inure to the benefit of the Purchaser or any such person from whom the person asserting any loss, claim, damage, liability or expense purchased Common Stock, if copies of the Prospectus were timely delivered to the Purchaser pursuant hereto and satisfaction a copy of all indemnified liabilities the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Purchaser or any such person to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Stock to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Company will reimburse the Purchaser and each such controlling person promptly upon demand for any legal or other costs or expenses reasonably incurred by the Indemnitees Purchaser or any of them. The provisions of controlling person in investigating, defending against, or preparing to defend against any such claim, action, suit or proceeding, except that the undertakings Company will not be liable to the extent a claim or action which results in a loss, claim, damage, liability or expense arises out of, or is based upon, an untrue statement, alleged untrue statement, omission or alleged omission, included in any Registration Statement, Prospectus or Prospectus Supplement or any amendment or supplement to the thereto in reliance upon, and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and conformity with, written information furnished by the termination of this AgreementPurchaser to the Company for inclusion in the Registration Statement, Prospectus or Prospectus Supplement.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Nexell Therapeutics Inc)
General Indemnity. In addition to any liability of the payment of expenses pursuant Company to Section 13.3any Holder or the Trustee under any other provision hereof, whether or not the transactions contemplated Company shall and does hereby shall be consummatedindemnify each Holder, Borrower hereby agrees to indemnify, pay and hold the Collateral Agent and each of the Banks Trustee (including a receiver, receiver-manager or similar Person appointed under applicable Law) and any holder(s) of the Notes, and the officerstheir respective Affiliates, directors, employeesofficers, agents and affiliates of the Agent, each of the Banks and such holder(s) employees (collectively, the "Indemnitees"“Indemnified Parties”) and hold each Indemnified Party harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements damages or liabilities incurred by the same as a result of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with this Indenture or the other Note Documents, including as a result of or in connection with:
(a) the Company’s failure to pay any investigativeother amount, administrative including any interest or judicial proceeding commenced fees, due hereunder on its due date after the expiration of any applicable grace or threatenednotice periods (subject, whether or not such Indemnitees shall be designated a party thereto)however, that may be imposed on, incurred by or asserted against to the Indemnitees, in any manner relating to or arising out of this Agreement, any interest obligations of the other Transaction Documents Company hereunder for overdue amounts);
(b) the Company’s failure to give any notice required to be given by it to the Trustee or the Holders hereunder;
(c) the failure of the Company or any other agreement, document or instrument executed and delivered by Borrower or Note Party to make any other Obligor in connection herewith payment due hereunder or therewith, the statements contained in under any commitment letters delivered by the Agent or Note Document;
(d) any failure of the Banks, Company to observe or fulfil its covenants under Article Eight or Article Ten; or
(e) the agreement occurrence of any Default or Event of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities")Default; provided that Borrower this Section shall have no obligation not apply to an Indemnitee hereunder with respect to indemnified any losses, claims, costs, damages or liabilities arising from that arise by reason of the gross negligence or willful misconduct of that Indemnitee the Indemnified Party, as determined by a court of competent jurisdiction in a final nonappealable orderand non-appealable decision, claiming indemnity hereunder. This Section shall survive repayment of the Obligations and termination of this Indenture and the resignation or removal of the Collateral Agent or the Trustee. To secure the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the Company’s payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out obligations in this Section 13.5 1601, the Trustee and Collateral Agent shall survive satisfaction have a lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, interest and payment of Borrower's Obligations and the termination of this AgreementAdditional Amounts, if any, on particular Notes.
Appears in 1 contract
General Indemnity. In addition Subject to Section 5.3, from and after the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower Closing Date:
(a) Assignor hereby agrees to indemnify, pay defend and hold the Agent harmless Assignee and each of the Banks its Affiliates and any holder(s) of the Notes, its and the officers, their directors, employeesmanagers, trustees, officers, agents and affiliates employees (the “Assignee Indemnified Parties”) from, against and in respect of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind Losses suffered or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against Assignee Indemnified Parties to the Indemnitees, in any manner relating to or extent arising out of this Agreement, or resulting from (i) any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement breach of any of the Banks to make the Loans hereunderrepresentations or warranties (in each case, the agreement when made) of Mercantile to issue the Letters Assignor in this Agreement, (ii) any breach of Credit hereunder or the use or intended use any of the proceeds covenants or agreements of Assignor in this Agreement, and (iii) any Loan hereunder Excluded Liabilities and Obligations; provided, however, that the foregoing shall exclude any indemnification to any Assignee Indemnified Party (collectively, the "indemnified liabilities"); provided i) that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising results from the gross negligence or willful misconduct of an Assignee Indemnified Party or (ii) that Indemnitee as determined by a court results from acts or omissions of competent jurisdiction Assignor or any of its Affiliates that are in a final nonappealable order. To accordance with specific written instructions from any Assignee Indemnified Party (unless Assignor is otherwise liable for such Losses pursuant to the extent that the undertaking terms of this Agreement); and
(b) Assignee hereby agrees to indemnify, pay defend and hold harmless set forth Assignor and its Affiliates and its and their directors, officers, agents and employees (“Assignor Indemnified Parties”) from, against and in respect of all Losses suffered or incurred by Assignor Indemnified Parties to the preceding sentence may be unenforceable because it is violative extent arising out of or resulting from (i) any breach of any law of the representations or public policywarranties (in each case, Borrower when made) of Assignee in this Agreement or (ii) any breach of any of the covenants or agreements of Assignee in this Agreement; provided, however, that the foregoing shall contribute exclude any indemnification to any Assignor Indemnified Party (i) that results from the maximum portion gross negligence or willful misconduct of an Assignor Indemnified Party or (ii) that it is permitted to pay and satisfy under applicable law to the payment and satisfaction results from acts or omissions of all indemnified liabilities incurred by the Indemnitees Assignee or any of them. The provisions of its Affiliates that are in accordance with specific written instructions from any Assignor Indemnified Party (unless Assignee is otherwise liable for such Losses pursuant to the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination terms of this Agreement).
Appears in 1 contract
General Indemnity. In addition to Each Party (the payment of expenses pursuant to Section 13.3will defend and indemnify the other Party, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, and the its officers, directors, employees and permitted assignees (collectively, the “Indemnified Party”) and hold such Indemnified Party harmless against:
12.1.1 Any Loss to a third person arising out of: the negligent acts or omissions, or willful misconduct by such Indemnifying Party or the Fault of its employees, agents and affiliates subcontractors; provided, however, that (1) with respect to employees or agents of the AgentIndemnifying Party, each such Fault occurs while performing within the scope of their employment, (2) with respect to subcontractors of the Banks Indemnifying Party, such Fault occurs in the course of performing duties of the subcontractor under its subcontract with the Indemnifying Party, and (3) with respect to the Fault of employees or agents of such holder(s) (collectivelysubcontractor, such Fault occurs while performing within the "Indemnitees") harmless scope of their employment by the subcontractor with respect to such duties of the subcontractor under the subcontract;
12.1.2 Any Loss arising from and against any and all other liabilitiessuch Indemnifying Party’s use of services offered under this Agreement, obligations, losses, damages, penaltiesinvolving pending or threatened claims, actions, judgments, suits, claims, costs, expenses and disbursements of any kind proceedings or nature whatsoever suits (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto“Claims”), that may be imposed onfor libel, incurred by slander, invasion of privacy, or asserted against the Indemnitees, in any manner relating to or arising out infringement of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities Intellectual Property rights arising from the gross negligence Indemnifying Party’s own communications or willful misconduct the communications of that Indemnitee as determined by a court such Indemnifying Party’s Customers:
12.1.3 Any and all penalties imposed upon the Indemnifying Party’s failure to comply with the Communications Assistance to Law Enforcement Act of competent jurisdiction in a final nonappealable order. To 1994 (“CALEA”) and, at the extent that sole cost and expense of the undertaking Indemnifying Party, any amounts necessary to indemnifymodify or replace any equipment, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law facilities or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law services provided to the payment Indemnified Party under this Agreement to ensure that such equipment, facilities and satisfaction of all indemnified liabilities incurred by services fully comply with CALEA; and
12.1.4 Any Loss arising from such Indemnifying Party’s failure to comply with applicable law, other than the Indemnitees Act or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementapplicable FCC or Commission rule.
Appears in 1 contract
Sources: Interconnection Agreement
General Indemnity. In addition to To the payment of expenses pursuant to Section 13.3fullest extent permitted by applicable law, whether or not the transactions contemplated hereby INCA shall be consummated, Borrower hereby agrees to indemnify, pay indemnify and hold the Agent harmless ▇▇▇▇▇▇ and each of the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless Goldreich from and against any and all other liabilities, obligations, losses, damages, penaltiesfines, taxes and interest and penalties thereon, claims, demands, actions, judgments, suits, claimsproceedings (whether civil, criminal, administrative, investigative or otherwise), costs, expenses and disbursements (including legal and accounting fees and expenses, costs of investigation and sums paid in settlement) of any kind or nature whatsoever (includingcollectively, without limitation, the reasonable fees “Claims and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that Expenses”) which may be imposed on, incurred by or asserted at any time against the Indemnitees, ▇▇▇▇▇▇ in any manner relating way related to INCA or any of its subsidiaries or affiliates, or arising out of this Agreement, any or in relation to the business or affairs of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent INCA or any of its subsidiaries or affiliates, including but expressly not limited to (i) any actions or alleged actions taken by ▇▇▇▇▇▇ in her capacity as an employee, President, or Secretary of INCA or any INCA subsidiary or affiliate, or as a member of the Banks, the agreement Board of Directors of INCA; or (ii) any actions or alleged actions taken by INCA or any of the Banks to make the Loans hereunderits subsidiaries or affiliates, the agreement of Mercantile to issue the Letters of Credit hereunder or the use INCA’s or intended use of the proceeds of any Loan hereunder (collectivelyINCA’s subsidiaries’ and/or affiliates’ present and former officers, the "indemnified liabilities")directors, members, shareholders, subsidiaries, affiliates, agents, employees, predecessors, successors and assigns, personal representatives, heirs, executors, estates, and administrators; provided that Borrower ▇▇▇▇▇▇ and Goldreich shall have no obligation not be entitled to an Indemnitee indemnification hereunder with respect for Claims and Expenses that are primarily attributable to indemnified liabilities arising from the gross negligence Hirsch’s or Goldreich’s willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementmisconduct.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.313.1 Each party shall defend, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay indemnify and hold harmless the Agent other, its corporate affiliates and each their respective officers, directors, employees, and agents and their respective Cisco Systems, Inc. - Proprietary and Confidential Velocita Communications Agreement 12 successors and assigns from and against any and all claims, losses, liabilities, damages, and expenses (including, without limitation, reasonable attorneys' fees), including without limitation, those based on contract or tort, arising out of or in connection with a claim, suit or proceeding brought by a third party based upon bodily injury (including death) or damage to tangible personal property (not including lost or damaged data) arising from the negligent or intentional acts or omissions of the Banks and any holder(s) of the Notesindemnifying party or its subcontractors, and or the officers, directors, employees, agents agents, successors and affiliates assigns of any of them. In the Agent, each event that the indemnified party's or a third party's negligent or intentional acts or omissions contributed to cause the injury or damage for which a claim of indemnity is being asserted against the Banks and such holder(s) (collectivelyindemnifying party hereunder, the "Indemnitees") harmless from damages and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees attorneys' fees) shall be designated a allocated or reallocated, as the case may be, between the indemnified party, the indemnifying party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or and any other agreementparty bearing responsibility in such proportion as appropriately reflects the relative fault of such parties, document or instrument executed their subcontractors, or the officers, directors, employees, agents, successors and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement assigns of any of them, and the Banks liability of the indemnifying party shall be proportionately reduced.
13.2 The foregoing indemnification obligations are conditioned upon the indemnified party, cooperating with, assisting and providing information to, the indemnifying party as reasonably required, and granting the indemnifying party the exclusive right to make defend or settle such claim, suit or proceeding. The indemnified party shall promptly notify the Loans indemnifying party in writing of the claim, suit or proceeding for which the indemnifying party is obligated to provide indemnification under this Section, provided that failure of the indemnified party to provide timely notice hereunder shall not affect rights of indemnification hereunder, the agreement of Mercantile except to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence indemnifying party is detrimentally prejudiced thereby. No indemnifying party may be unenforceable because enter into any settlement of a claim for which it is violative of any law or public policy, Borrower shall contribute providing indemnification hereunder to the maximum portion extent that it is permitted to pay and satisfy under applicable law to would have a material adverse effect on the payment and satisfaction of all indemnified liabilities incurred by party without the Indemnitees or any of them. The provisions prior written approval of the undertakings and indemnification set out in this Section 13.5 indemnified party, which approval shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementnot be unreasonably withheld.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, The Borrower hereby agrees to indemnify, pay covenants with each Agent and hold each Lender that it shall at all times hereafter keep the Agent and each of the Banks such Lender, their respective affiliates and any holder(s) of the Notestheir directors, and the officers, directorsemployees and agents (each, employees, agents an “Indemnified Party”) indemnified and affiliates of the Agent, each of the Banks and such holder(s) (collectively, the "Indemnitees") held harmless from and against any all suits (whether founded or unfounded), actions, proceedings, judgments, demands or claims instituted or made against such Indemnified Party, and all other liabilities, obligationscosts, losses, damagesliabilities, penalties, actions, judgments, suits, claims, costs, damages and expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable including all fees and disbursements expenses of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, counsel) incurred by or asserted against the Indemnitees, such Indemnified Party in any manner way relating to or to, arising out of this Agreementof, or incidental to any of the other Transaction Documents Environmental Laws or any other agreement, document or instrument executed and delivered default by Borrower or any other Obligor in connection herewith or therewith, the statements contained in Loan Party under any commitment letters delivered by the Agent or any of the Banks, the agreement provision of any of the Banks Loan Documents except to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use extent any of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising foregoing result directly from the gross negligence or willful misconduct of that Indemnitee as determined such Indemnified Party. In case any proceeding shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 10.6, the applicable Indemnified Party shall promptly notify the Borrower in writing (but failure to do so shall not relieve the Borrower from any liability which it may have pursuant to this Section 10.6) and the Borrower, upon request of the Indemnified Party, shall retain counsel satisfactory to the Indemnified Party, acting reasonably, to represent the Indemnified Party and any others the Borrower may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless:
(a) the Borrower and the Indemnified Party shall have mutually agreed to the retention of such counsel; or
(b) the named parties to any such proceeding include the Borrower and the Indemnified Party and any other parties in respect of which the Borrower has provided a similar indemnity and representation of such parties by a court of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnifysame counsel, pay and hold harmless set forth in the preceding sentence may reasonable judgment of such Indemnified Party, would be unenforceable because it is violative of any law inappropriate due to actual or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of potential differing interests between them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Transcanada Corp)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.37(f), whether or not the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify, pay and hold the Agent and each of Lenders, the Banks Collateral Agent, their respective affiliates and any holder(s) holder of the Notesany Note, and the their respective officers, directors, employees, agents agents, successors and affiliates of assigns (collectively called the Agent, each of the Banks and such holder(s) (collectively, the "“Indemnitees"”) harmless from and against against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for any of such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by by, or asserted against the IndemniteesIndemnitees (or any of them), in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewithLoan Documents, the statements contained in any commitment proposal letters or other similar correspondence delivered by either or both Lenders or the Collateral Agent (whether in person, by mail, courier or any of the Bankselectronic means), the Lenders’ agreement of any of the Banks to make the Loans hereunderLoan to the Borrower, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any the Loan hereunder (collectively, the "indemnified liabilities"“Indemnified Liabilities”); provided provided, however, that the Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities Indemnified Liabilities arising from the gross negligence or willful misconduct of that Indemnitee as determined by a court of competent jurisdiction in a final nonappealable orderan Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of violates any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law law, to the payment and satisfaction of all indemnified liabilities Indemnified Liabilities incurred by the Indemnitees or any of them. The provisions obligations of the undertakings and indemnification set out in Borrower under this Section 13.5 13(d) and under Section 7(f) shall survive satisfaction and payment of Borrower's Obligations and the any termination of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Air T Inc)
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3The Borrower shall pay, whether or not the transactions contemplated hereby shall be consummateddefend, Borrower hereby agrees to indemnify, pay and hold the Agent Arranger, each Lender, the Agent, the Other Agents, their respective Affiliates and each of the Banks and any holder(s) of the Notes, and the their respective officers, directors, employees, agents counsel, agents, advisors, representatives and affiliates of the Agentattorneys-in-fact (each, each of the Banks and such holder(s) (collectively, the an "IndemniteesINDEMNIFIED PERSON") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, charges, expenses or disbursements (including reasonable fees, disbursements and disbursements expenses of counsel and allocated costs of internal counsel incurred in defending any such action or incurred in enforcing this Section 11.06(a)), joint or several, that may be incurred by or asserted or awarded against any Indemnified Person, of any kind or nature whatsoever (includingwith respect to the execution, without limitationdelivery, enforcement and performance of this Agreement and any other Loan Document or the reasonable fees transactions contemplated herein, and disbursements with respect to any investigation, litigation or proceeding or the preparation of counsel for such Indemnitees in connection with any investigative, administrative defense related to this Agreement or judicial proceeding commenced the Advances or threatenedthe Letters of Credit or the use of the proceeds thereof, whether or not such Indemnitees shall be designated any Indemnified Person is a party thereto)thereto (all the foregoing, that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilitiesINDEMNIFIED LIABILITIES"); provided ) and whether or not such investigation, litigation or proceeding is brought by the Borrower, any Guarantor, any of their respective shareholders or creditors, an Indemnified Person, or any other person, except that Borrower no Indemnified Person shall have no obligation any liability (whether direct or indirect, in contract, tort or otherwise) to an Indemnitee hereunder the Borrower, any Guarantor or any of their respective shareholders or creditors for or in connection with respect the transactions contemplated hereby, except to indemnified liabilities arising the extent that such liability is found in a final non-appealable judgment by a count of competent jurisdiction to have resulted from the gross negligence or willful misconduct of that Indemnitee as determined by a court such Indemnified Person. In no event shall any Indemnified Person be liable on any theory of competent jurisdiction in a final nonappealable order. To the extent that the undertaking to indemnifyliability for any special, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law indirect, consequential or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreementpunitive damages.
Appears in 1 contract
General Indemnity. In addition to the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby Each Borrower shall be consummated, Borrower hereby agrees to indemnify, pay indemnify Lender and hold the Agent and each of the Banks and any holder(s) of the Notes, and the its officers, directors, employees, attorneys and agents (each, an “Indemnified Party”) from, and affiliates of the Agentshall defend and hold each Indemnified Party harmless against, each of the Banks and such holder(s) (collectively, the "Indemnitees") harmless from and against any and all other losses, liabilities, obligations, losses, damages, penaltiesclaims, actions, judgments, suits, claimsdamages, penalties, costs, fees, expenses and disbursements (including reasonable attorney’s fees) of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees in connection with which at any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that time may be imposed on, incurred by by, or asserted against an Indemnified Party: (a) as a result of Lender’s exercise of (or failure to exercise) any of its rights and remedies hereunder, including, without limitation, (i) any sale or transfer of the IndemniteesCollateral, (ii) the preservation, repair, maintenance, preparation for sale or securing of any Collateral, and (iii) the defense of Lender’s interests in the Collateral (including the defense of claims brought by either Borrower as a debtor-in-possession or otherwise, any manner secured or unsecured creditors of either Borrower, or any trustee or receiver in bankruptcy); (b) arising from or relating to (i) the maintenance and operation of the Lender Lockbox or the Lender Payment Account, and (ii) any action taken (or failure to act) by any Indemnified Party with respect thereto; (c) in connection with any regulatory investigation or proceeding by any regulatory authority or agency having jurisdiction over either Borrower; and (e) otherwise relating to or arising out of the transactions contemplated by this AgreementAgreement and the other Loan Documents, or any action taken (or failure to act) by any Indemnified Party with respect thereto; provided that an Indemnified Party’s conduct in connection with any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the foregoing matters does not constitute gross negligence or willful misconduct of that Indemnitee misconduct, as finally determined by a court of competent jurisdiction in a final nonappealable orderjurisdiction. To This indemnification shall survive the extent that the undertaking to indemnify, pay termination of this Agreement and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees Obligations. Lender may from time to time establish reserves with respect to this indemnity as Lender in its discretion may deem necessary or any of them. The provisions of the undertakings advisable, and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and the upon termination of this Agreement, Lender may hold such reserves as cash reserves as security for this indemnity.
Appears in 1 contract
Sources: Loan and Security Agreement (Blue Star Foods Corp.)
General Indemnity. In addition to (a) Indemnification by the payment of expenses pursuant to Section 13.3, whether or not the transactions contemplated hereby shall be consummated, Borrower hereby agrees to indemnify, pay Company. The Company will indemnify and hold harmless the Agent Purchaser, each of its directors, fund managers and officers, and each person, if any, who controls the Purchaser within the meaning of Section 15 of the Banks and any holder(sSecurities Act of 1933, as amended (the "Securities Act"), or Section 20(a) of the NotesSecurities Exchange Act, and the officers, directors, employees, agents and affiliates of the Agent, each of the Banks and such holder(s) as amended (collectively, the "IndemniteesExchange Act") harmless ), from and against any and all other liabilitieslosses, obligations, lossesclaims, damages, penaltiesliabilities and expenses (including reasonable costs of defense and investigation and all reasonable attorneys' fees) to which the Purchaser, actionseach of its directors, judgmentsfund managers and officers, suitsand each person, if any, who controls the Purchaser may become subject, under the Securities Act or otherwise, insofar as such losses, claims, costsdamages, liabilities and expenses and disbursements (or actions in respect thereof) arise out of or are based upon, (i) any kind untrue statement or nature whatsoever alleged untrue statement of a material fact contained, or incorporated by reference, in the Registration Statement relating to the Common Stock being sold to the Purchaser (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees including any Prospectus Supplement filed in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated the transactions contemplated hereunder which are a party theretopart of it), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the other Transaction Documents or any other agreementamendment or supplement to it, document or instrument executed and delivered by Borrower (ii) the omission or alleged omission to state in that Registration Statement or any other Obligor document incorporated by reference in connection herewith the Registration Statement, a material fact required to be stated therein or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks necessary to make the Loans hereunderstatements therein not misleading, the agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, the "indemnified liabilities"); provided that Borrower the Company shall have no obligation not be liable under this Section 1(a) to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of extent that Indemnitee as determined by a court of competent jurisdiction in shall have determined by a final nonappealable order. To judgment (with no appeals available) that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act, undertaken or omitted to be taken by the extent Purchaser or such person through its bad faith or willful misconduct; provided, however, that the undertaking foregoing indemnity shall not apply to indemnifyany loss, pay claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and hold harmless set forth in conformity with written information furnished to the Company by the Purchaser expressly for use in the preceding sentence may be unenforceable because it is violative of Registration Statement, any law preliminary prospectus or public policythe prospectus (or any amendment or supplement thereto); and provided, Borrower shall contribute the maximum portion further, that it is permitted to pay and satisfy under applicable law with respect to the payment prospectus, the foregoing indemnity shall not inure to the benefit of the Purchaser or any such person from whom the person asserting any loss, claim, damage, liability or expense purchased Common Stock, if copies of the prospectus were timely delivered to the Purchaser pursuant hereto and satisfaction a copy of all indemnified liabilities the prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Purchaser or any such person to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Stock to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense.
(b) The Company will reimburse the Purchaser and each such controlling person promptly upon demand for any legal or other costs or expenses reasonably incurred by the Indemnitees Purchaser or any of them. The provisions of controlling person in investigating, defending against, or preparing to defend against any such claim, action, suit or proceeding, except that the undertakings Company will not be liable to the extent a claim or action which results in a loss, claim, damage, liability or expense arises out of, or is based upon, an untrue statement, alleged untrue statement, omission or alleged omission, included in any Registration Statement, prospectus or Prospectus Supplement or any amendment or supplement to the thereto in reliance upon, and indemnification set out in this Section 13.5 shall survive satisfaction and payment of Borrower's Obligations and conformity with, written information furnished by the termination of this AgreementPurchaser to the Company for inclusion in the Registration Statement, prospectus or Prospectus Supplement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Columbia Laboratories Inc)