Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 3 contracts
Samples: Credit Agreement (Tim Hortons Inc.), Credit Agreement (New Red Canada Partnership), Credit Agreement (Burger King Worldwide, Inc.)
Indemnification by the Borrowers. Whether or not The Canadian Borrower shall, and does hereby, indemnify the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Canadian Administrative Agent, each Documentation Agent Canadian Lender and their respective Affiliates, directors, officers, employees, counsel, agents, advisorsthe Canadian Issuing Lender, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claimsUS Borrower shall, and reasonable does hereby, indemnify the US Administrative Agent, each US Lender and documented the US Issuing Lender, in any case, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or invoiced out-of-pocket fees and expenses Other Taxes (including reasonable Attorney Costs of one counsel for all Indemnitees andIndemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by such Administrative Agent, if necessarysuch Lender or such Issuing Lender, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in as the case of an actual or perceived conflict of interestmay be, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claimsinterest and reasonable expenses arising therefrom or with respect thereto (except such expenses, demands, actions, judgments, suits, costs, expenses or disbursements resulted interest and penalties resulting from (x) the gross negligence, bad faith negligence or willful misconduct of such Indemnitee Administrative Agent, such Lender or of any of its controlled Affiliates or controlling Persons or any of the officerssuch Issuing Lender, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a by final and non-appealable decisionnonappealable judgment), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation Indemnified Taxes or proceeding is brought Other Taxes were correctly or legally imposed or asserted by any Loan Party, its directors, managers, partners, stockholders the relevant Governmental Authority. A certificate as to the amount of such payment or creditors liability delivered to a Borrower by a Lender or an Indemnitee Issuing Lender (with a copy to the Applicable Administrative Agent), or any other Personby the Applicable Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Lender, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after conclusive absent manifest error. Failure or delay on the part of any Administrative Agent, Lender or Issuing Lender to demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation not constitute a waiver of the such Person’s right to demand such payment; provided that, no Administrative Agent, Lender or Issuing Lender shall be indemnified for any Indemnified Taxes or Other Taxes the replacement demand for which is made to the Applicable Borrower later than one year after the later of any Lender(i) the date on which the relevant Governmental Authority makes written demand upon the applicable Administrative Agent, Lender or Issuing Lender for payment of such Indemnified Taxes or Other Taxes, and (ii) the termination date on which such Administrative Agent, Lender or Issuing Lender has made payment of such Indemnified Taxes or Other Taxes; provided that if the Aggregate Commitments and Indemnified Taxes or Other Taxes imposed or asserted giving rise to such claims are retroactive, then the repayment, satisfaction or discharge one-year period referred to above shall be extended to include the period of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etcretroactive effect thereof., with respect to a non-Tax claim.
Appears in 2 contracts
Samples: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, and their respective officers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of each of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities (including Environmental Liabilities), obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andthat is material to the interests of the Lenders, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counselIndemnitees, of another firm of counsel for such affected Indemnitee)taken as a whole) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), Credit or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), ) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directorsemployees, employeespartners, agents, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one any of its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any similar role or as a letter of credit issuer or swing line bank under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrowers or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemniteetheir Affiliates). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Borrower or any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses); it being agreed that this sentence shall not limit the indemnification obligations of Holdings, the Borrowers or any Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent or Collateral Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc.penalties, with respect to a claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claimclaims.
Appears in 2 contracts
Samples: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers shall, the Borrowers shall jointly and severally, indemnify and hold harmless each Agent, Agent-Related Person, each Lender, each Lead ArrangerArranger and Bookrunner and their Affiliates, the Syndication Agent, each Documentation Agent and their respective Affiliatesofficers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andthat is material to the interests of the Lenders, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials at, on, at, under or from any property or facility currently or formerly owned owned, leased or operated by the Parent Borrower, any Subsidiary Loan Parties or any other Loan PartySubsidiary, or any Environmental Liability related in any way to of the Parent Borrower, any Subsidiary Loan Parties or any other Loan PartySubsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all a “Proceeding”) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by the foregoing, collectively, the “Indemnified Liabilities”)Parent Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee (all of the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directors, employees, agentspartners, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one of any of its Affiliates or their respective directors, officers, employees, partners, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrower, the Sponsor or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)their Affiliates. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses); it being agreed that this sentence shall not limit the indemnification obligations of Holdings or any Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc.penalties, with respect to a claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claims. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 2 contracts
Samples: Credit Agreement (Change Healthcare Holdings, Inc.), Credit Agreement (TC3 Health, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentCo-Manager, each Documentation Agent Lender, each L/C Issuer and their respective Affiliates, and their respective officers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of each of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities (including Environmental Liabilities), obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andthat is material to the interests of the Lenders, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), Credit or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), ) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directorsemployees, employeespartners, agents, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one of any of its Affiliates or their respective directors, officers, employees, partners, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an Agent, L/C Issuer or as a Lead Arranger under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrowers, the Investors or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeAffiliates). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks Debtdomain, Roadshow Access (if applicable) or other similar information transmission systems in connection with this Agreement, nor nor, to the extent permissible under applicable Law, shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses in each case subject to the indemnification provisions of this Section 10.05); it being agreed that this sentence shall not limit the indemnification obligations of Holdings, the Borrowers or any Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation or removal of the Administrative Agent or Collateral Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc.penalties, with respect to a claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claimclaims.
Appears in 2 contracts
Samples: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers shall, the Borrowers shall jointly and severally, indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each the Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisorspartners, members, advisors and other representatives of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, losses, liabilities, damages, claimsclaims and expenses (including Attorney Costs, but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel for to all Indemnitees taken as a whole and, if reasonably necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (therefrom, including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such the Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to of the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all a “Proceeding”) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by the foregoing, collectively, the “Indemnified Liabilities”)Parent Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, claims or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, agent, partners, member, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction, (y) a material breach of any obligations under any Credit Document by such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, member, agent, partners, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than (1) any claims against an Indemnitee in its controlled Affiliates capacity or controlling Persons in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and (2) any claims arising out of any act or omission of the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decisionjudgment of a court of competent jurisdiction), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to . To the extent such disputes do not arise from that the undertakings to indemnify and hold harmless set forth in this Section 10.05 may be unenforceable in whole or in part because they are violative of any act applicable law or omission of public policy, the Parent 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 its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except for direct (as opposed to indirect, special, punitive or consequential) damages resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of any such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability and each party hereby waives, any claim against any other party to this Agreement or any Indemnitee for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Effective Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses related thereto). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Credit Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply to Taxes Taxes, other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to resulting from a non-Tax claim. To the extent that the Borrowers for any reason fails to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), L/C Issuers or any Related Party of any of the foregoing(and without limiting the Borrowers’ obligation to do so), each Appropriate Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), L/C Issuers or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or an L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or any L/C Issuer in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 2 contracts
Samples: Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Iqvia Holdings Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Administrative Agent, each Documentation Agent Lender and their respective Affiliateseach Issuing Lender, directorswithin 20 days after written demand therefor, officersfor the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, employeessuch Lender or such Issuing Lender, counsel, agents, advisorsas the case may be, and other representatives (collectivelyany reasonable expenses arising therefrom or with respect thereto; provided that upon the request, and at the sole expense of, any Borrower, the “Indemnitees”) from and against any and all lossesAdministrative Agent, liabilitiessuch Lender or such Issuing Lender, damagesas the case may be, claimsshall reasonably afford such Borrower the opportunity to contest (at such Borrower’s expense), and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees andreasonably cooperate with such Borrower in contesting, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) imposition of any Taxes giving rise to such Indemnitee arising out of amount; provided that (i) to the extent that any such Taxes are required by applicable law to be paid prior to commencing any such contest, such Borrower shall pay or relating to any claim or any litigation or other proceeding (regardless of whether reimburse such Indemnitee is a party thereto and Taxes whether or not such proceedings are brought Taxes were correctly or legally imposed or asserted by the Parent relevant Governmental Authority, (ii) such Borrower shall have confirmed in writing to such Person its obligation to pay such indemnity amounts pursuant to this Agreement, (iii) such Person shall have received at such Borrower’s sole expense an opinion, its equity holdersin a form reasonably satisfactory to such Person, its Affiliates, creditors or any other third person) that relates of independent tax counsel selected by such Borrower and reasonably acceptable to such Person to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any effect that there exists a reasonable basis for such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated therebycontest, (biv) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand such Borrower shall reimburse such Person for payment under a Letter of Credit if the documents presented its reasonable attorneys’ and accountants’ fees and disbursements incurred in connection so cooperating with such demand do not strictly comply with the terms of such Letter of Credit), or Borrower in so contesting and (v) nothing in this paragraph (c) shall be construed to require such Person to rearrange its tax affairs other than as it sees fit in its sole discretion or to disclose or provide its tax returns or other information it reasonably considers confidential or proprietary to any actual Person. A certificate setting forth in reasonable detail the amount of such payment or alleged presence liability delivered to the Company by a Lender or Release an Issuing Lender, or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent BorrowerAdministrative Agent on its own behalf or on behalf of a Lender or an Issuing Lender, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etcconclusive absent manifest error., with respect to a non-Tax claim.
Appears in 2 contracts
Samples: Credit Agreement (Cambrex Corp), Credit Agreement (Cambrex Corp)
Indemnification by the Borrowers. Whether or not Each Loan Party shall indemnify the transactions contemplated hereby are consummatedAdministrative Agent (and any sub-agent thereof), each Lender and the Borrowers L/C Issuer and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) and shall indemnify and hold harmless each Agent-Related PersonIndemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, each Lenderincurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, each Lead Arrangerin connection with, or 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 Syndication Agent, each Documentation Agent and performance by the parties hereto of their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectivelyobligations hereunder or thereunder, the “Indemnitees”) from consummation of the Original Closing Date Transaction, the consummation of the Restatement Date Transactions, the consummation of the Third Restatement Date Transactions, the consummation of the Second Amendment Closing Date Transactions and against any and all lossesthe transactions contemplated hereby or thereby, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andor, in the case of an actual or perceived conflict the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of interest, where this Agreement and the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) other Loan Documents (including in respect of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee matters addressed in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated therebySection 3.01), (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release of Hazardous Materials in, on, atthrough, under or from any property currently or formerly owned owned, leased or operated by the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or any Environmental Claim or Environmental Liability related in any way to any of the Parent Borrower, any Subsidiary Loan Parties or any other Loan Party, of their respective Subsidiaries or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory theory, whether brought by a Lender, a third party or by any Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a by final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees nonappealable judgment to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this This Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (1011.04(b) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply with respect to Taxes other than any Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a losses or damages arising from any non-Tax claim.
Appears in 2 contracts
Samples: Credit Agreement (ACCO BRANDS Corp), Credit Agreement (ACCO BRANDS Corp)
Indemnification by the Borrowers. Whether The Borrowers shall indemnify the Administrative Agent, each Lender and the Issuing Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by the Administrative Agent, such Lender (or its beneficial owners) or the Issuing Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the transactions contemplated hereby are consummatedrelevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender or the Issuing Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive absent manifest error. The Borrowers shall also indemnify the Administrative Agent, within 10 days after demand therefor, for any amount which a Lender or the Issuing Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by this paragraph (c); provided that, such Lender or the Issuing Lender, as the case may be, shall indemnify the Borrowers to the extent of any payment any Borrower makes to the Administrative Agent pursuant to this sentence. In addition, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, each Lender and the replacement Issuing Lender, within 10 days after demand therefor, for any incremental Taxes that may become payable by such Administrative Agent, Lender (or its beneficial owners) or Issuing Lender as a result of any Lenderfailure of any Credit Party to pay any Taxes when due to the appropriate Governmental Authority or to deliver to such Administrative Agent, pursuant to clause (e), documentation evidencing the termination payment of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etcTaxes., with respect to a non-Tax claim.
Appears in 2 contracts
Samples: Credit Agreement (Primo Water Corp), Credit Agreement (Primo Water Corp)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives Related Persons (collectively, the “Indemnitees”) from and against any and all losses, liabilitiesclaims, damages, claimsliabilities or expenses (including Attorney Costs but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is Indemnitees similarly situated taken as a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (cwhole) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective threatened claim, litigation, investigation or proceeding relating to any the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents, the Loans or the use, or proposed use of the foregoingproceeds therefrom, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigationlitigation, litigation investigation or proceeding) ), and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Related Indemnified Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a final, non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one any of its Affiliates Related Indemnified Persons as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Loan Document and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect as determined by a final, non-appealable judgment of a court of competent jurisdiction). To the extent that the undertakings to a claim against an Indemnitee acting indemnify and hold harmless set forth in its capacity as an Agent this Section 10.05 may be unenforceable in whole or Lead Arranger in part because they are violative of any applicable law or similar role public policy, the Borrowers shall contribute the maximum portion that they are permitted to pay and satisfy under applicable law to the Loan Documents unless such claim arose from payment and satisfaction of all Indemnified Liabilities incurred by the gross negligence, bad faith Indemnitees or willful misconduct any of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party for which such Indemnitee is otherwise entitled to indemnification pursuant to this Section 10.05). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten twenty (1020) Business Days after written demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For The Borrowers shall not, without the avoidance prior written consent of doubtan Indemnitee (which consent shall not be unreasonably withheld or delayed (it being understood that it is reasonable for any Indemnitee to withhold consent if such settlement does not satisfy clauses (a) and (b) below)), this effect any settlement of any pending or threatened claim, litigation, investigation or proceeding) in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (a) includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee (which approval shall not be unreasonably withheld or delayed) from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding) and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnitee. This Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a losses or damages arising from any non-Tax claim. Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return promptly any and all amounts paid by the Borrowers, any Holdings Entity, the Sponsors or any of their Affiliates under this Section 10.05 to such Indemnitee for any such fees, expenses or damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof as determined by a court of competent jurisdiction in a final non-appealable judgment.
Appears in 2 contracts
Samples: Syndicated Facility Agreement (DTZ Jersey Holdings LTD), Syndicated Facility Agreement (DTZ Jersey Holdings LTD)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify the Administrative Agent, each Issuing Lender and hold harmless each Agent-Related Person, each Lender, and each Lead Arranger, Related Party of any of the Syndication Agent, foregoing Persons (each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the such Person being called an “IndemniteesIndemnitee”) from and against against, and hold each Indemnitee harmless from, any and all lossesLiabilities and related costs, liabilitiesexpenses and disbursements, damagesincluding the reasonable fees, claimscharges and disbursements of any counsel (limited to a single outside counsel to such Indemnitees, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessarytaken as a whole, one firm of local counsel in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, solely in the case event of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counselone additional counsel (and, of another firm of if necessary, one local counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding in each relevant jurisdiction (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at include a single special counsel acting in multiple jurisdictions)), to each group of similarly situated affected Indemnitees taken as a whole) for any time be imposed onIndemnitee, incurred by or asserted against any such Indemnitee in or to which any way relating to or Indemnitee may become subject, arising out of or of, in connection with with, or as a result of (ai) the execution, delivery, enforcement, performance execution or administration delivery of any Loan Document this Agreement or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated therebyhereby, (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer any Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent BorrowerHoldings, any Subsidiary Borrower or any other Loan Partyof their Subsidiaries, or any Environmental Liability Claim related in any way to the Parent BorrowerHoldings, any Subsidiary Borrower or any other Loan Partyof their Subsidiaries, (iv) any act or omission of the Administrative Agent in connection with the administration of this Agreement or any agreement or instrument contemplated hereby, or (dv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including and regardless of whether any investigation ofIndemnitee is a party thereto or whether brought by Holdings, preparation forany Borrower, any of their Affiliates or defense of equity holders or any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemniteeother party; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, Liabilities or related expenses or disbursements resulted from (x) the gross negligence, willful misconduct or bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (Related Parties as determined by a court of competent jurisdiction in a by final and non-appealable decision)nonappealable judgment, (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in Related Parties of its capacity as an Agent or Lead Arranger or similar role obligations under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out determined by a court of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought competent jurisdiction by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto final and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etcnonappealable judgment., with respect to a non-Tax claim.
Appears in 2 contracts
Samples: Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent L/C Issuer and their respective Affiliates, directors, officers, employees, counsel, agents, advisorsattorneys-in-fact, trustees and other representatives advisors (collectively, collectively the “Indemnitees”) from and against any and all liabilities, obligations, actual losses, liabilitiesactual damages, damagespenalties, claims, demands, actions, judgments, suits, reasonable costs, reasonable expenses and reasonable and documented or invoiced out-of-pocket fees and expenses disbursements (including reasonable Attorney Costs (which shall be limited to one (1) counsel to the Administrative Agent and the Lenders (exclusive of one counsel for all Indemnitees and, if necessary, one firm of local counsel to the Administrative Agent and the Lenders in each appropriate jurisdiction jurisdiction), unless (x) the interests of the Administrative Agent and the Lenders are sufficiently divergent, in which case one (1) additional counsel may include a single special be appointed and (y) if the interests of any Lender or group of Lenders (other than all of the Lenders) are distinctly or disproportionately affected, one (1) additional counsel acting in multiple jurisdictions) for all Indemnitees (and, such Lender or group of Lenders in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemniteeclause (a) below)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Revolving Credit Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent any Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is instituted by a third party or by any Borrower or any other Loan Party) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) have been determined in the gross negligence, bad faith or willful misconduct final judgment of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee)any Indemnitee or any of its directors, officers or employees or a material breach of the Loan Documents by any Indemnitee or (y) arise from claims of any of the Lenders solely against one or more Lenders (and not by one or more Lenders against the Administrative Agent or one or more of the other Agents) that have not resulted from the action, inaction, participation or contribution of any Borrower or their respective Subsidiaries or other Affiliates or any of their respective officers, directors, stockholders, partners, members, employees, agents, representatives or advisors. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid promptly (but in any event within ten thirty (1030) Business Days days) after written demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 2 contracts
Samples: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent BorrowerBorrowers, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, Transaction (including the financing contemplated hereby, ) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent BorrowerBorrowers, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent BorrowerBorrowers, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, and their respective officers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of each of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities (including Environmental Liabilities), obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andthat is material to the interests of the Lenders, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counselIndemnitees, of another firm of counsel for such affected Indemnitee)taken as a whole) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), Credit or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), ) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directorsemployees, employeespartners, agents, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one any of its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any similar role or as a letter of credit issuer or swing line bank under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrowers, the Investors or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemniteetheir Affiliates). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Borrower or any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses); it being agreed that this sentence shall not limit the indemnification obligations of Holdings, the Borrowers or any Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent or Collateral Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc.penalties, with respect to a claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claimclaims.
Appears in 1 contract
Indemnification by the Borrowers. Whether Each Borrower shall indemnify, severally in accordance with its respective Facility-wide Liability Percentage and not jointly, the Administrative Agent (and any sub-agent thereof), each Lender, each L/C Administrator and each Fronting Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of a law firm as counsel for all Indemnitees in connection with any event or not circumstance giving rise to claims hereunder except that if, in the transactions contemplated hereby are consummatedreasonable opinion of an Indemnitee, representation of all Indemnitees by one firm as counsel would be inappropriate due to the existence of an actual or potential conflict of interest, the Borrowers shall reimburse the reasonable fees and charges of no more than the number of additional law firms as counsel for the various Indemnitees as is necessary to avoid any such actual or potential conflict of interest), and shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) Indemnitee from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel time charges and disbursements for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which attorneys who may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) be employees of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed onIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Parent Borrower or any of its Subsidiaries) other than such Indemnitee in any way relating to or and its Related Parties arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any Loan other Credit Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby 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 the Administrative Agent (band any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Credit Documents (including in respect of any matters addressed in Section 3.01), (ii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer the Applicable Issuing Party to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Parent Borrower or arisingany of its Subsidiaries, in whole or in partand regardless of whether any Indemnitee is a party thereto, out of the negligence of the IndemniteeIN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of (y) result from a claim brought by the Parent Borrower or any of its controlled Affiliates Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or controlling Persons under any other Credit Document, if the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, such Subsidiary has obtained a final and nonappealable judgment in each case who are involved in or aware of the Transaction (its favor on such claim as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligationsjurisdiction. For the avoidance of doubt, this Section 10.05 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent liabilitieslosses, obligations, lossesclaims, damages, etc., with respect to a . arising from any non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, and their respective officers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of each of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andthat is material to the interests of the Lenders, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials at, on, at, under or from any property or facility currently or formerly owned owned, leased or operated by the Parent Borrower, any Subsidiary Loan Parties or any other Loan PartySubsidiary, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Loan Parties or any other Loan PartySubsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), ) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are Taxes, which shall be governed by Section 3.01 and Section 3.04 (other than Taxes arising from a non-Tax claim) or resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directorsemployees, employeespartners, agents, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one of any of its Affiliates or their respective directors, officers, employees, partners, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrowers, the Investors or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemniteetheir Affiliates). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses); it being agreed that this sentence shall not limit the indemnification obligations of Holdings or any Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The indemnification and other agreements in this Section 10.05 shall survive the resignation and removal of the Administrative Agent or Collateral Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether Each Borrower shall indemnify, severally in accordance with its respective Facility-wide Liability Percentage and not jointly, the Administrative Agent (and any sub-agent thereof), each Lender, each L/C Administrator and each Fronting Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of a law firm as counsel for all Indemnitees in connection with any event or not circumstance giving rise to claims hereunder except that if, in the transactions contemplated hereby are consummatedreasonable opinion of an Indemnitee, representation of all Indemnitees by one firm as counsel would be inappropriate due to the existence of an actual or potential conflict of interest, the Borrowers shall reimburse the reasonable fees and charges of no more than the number of additional law firms as counsel for the various Indemnitees as is necessary to avoid any such actual or potential conflict of interest), and shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) Indemnitee from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel time charges and disbursements for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which attorneys who may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) be employees of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed onIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Parent Borrower or any of its Subsidiaries) other than such Indemnitee in any way relating to or and its Related Parties arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any Loan other Credit Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby 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 the Administrative Agent (band any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Credit Documents (including in respect of any matters addressed in Section 3.01), (ii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer the Applicable Issuing Party to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on DB1/ 115371409.4 contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Parent Borrower or arisingany of its Subsidiaries, in whole or in partand regardless of whether any Indemnitee is a party thereto, out of the negligence of the IndemniteeIN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of (y) result from a claim brought by the Parent Borrower or any of its controlled Affiliates Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or controlling Persons under any other Credit Document, if the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, such Subsidiary has obtained a final and nonappealable judgment in each case who are involved in or aware of the Transaction (its favor on such claim as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligationsjurisdiction. For the avoidance of doubt, this Section 10.05 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent liabilitieslosses, obligations, lossesclaims, damages, etc., with respect to a . arising from any non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, directors, officers, employees, counsel, agents, advisorsattorneys-in-fact, trustees and other representatives advisors (collectively, collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and reasonable and documented or invoiced out-of-pocket fees and expenses disbursements (including reasonable Attorney Costs (which shall be limited to one (1) counsel to the Administrative Agent and the Lenders (exclusive of one counsel for all Indemnitees and, if necessary, one firm of local counsel to the Administrative Agent and the Lenders in each appropriate jurisdiction jurisdiction), unless (x) the interests of the Administrative Agent and the Lenders are sufficiently divergent, in which case one (1) additional counsel may include a single special be appointed and (y) if the interests of any Lender or group of Lenders (other than all of the Lenders) are distinctly or disproportionately affected, one (1) additional counsel acting in multiple jurisdictions) for all Indemnitees (and, such Lender or group of Lenders in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemniteeclause (a) below)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent any Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is instituted by a third party or by any Borrower or any other Loan Party) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) have been determined in the final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (zy) disputes solely between and among such Indemnitees to the extent such disputes do not arise from claims of any act or omission of the Parent Lenders solely against one or more Lenders (and not by one or more Lenders against the Administrative Agent or one or more of the other Agents) that have not resulted from the action, inaction, participation or contribution of any Borrower or their respective Subsidiaries or other Affiliates or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent their respective officers, directors, stockholders, partners, members, employees, agents, representatives or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)advisors. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05promptly. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)therefrom, or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeIndemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such if the Borrowers have reimbursed any Indemnitee shall promptly refund such amount to the extent that for any legal or other expenses in connection with any Indemnified Liabilities and there is a final judicial or arbitral determination non-appealable judgment of a court of competent jurisdiction that such the Indemnitee was not entitled to indemnification or contribution rights with respect to such payment Indemnified Liabilities pursuant to the express terms of this Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.. 162
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Agent- Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)therefrom, or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.its
Appears in 1 contract
Samples: Credit Agreement (Utz Brands, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers shall, the Borrowers shall jointly and severally, indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each the Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisorspartners, members, advisors and other representatives of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, losses, liabilities, damages, claimsclaims and expenses (including Attorney Costs, but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel for to all Indemnitees taken as a whole and, if reasonably necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (therefrom, including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such the Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to of the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all a “Proceeding”) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by the foregoing, collectively, the “Indemnified Liabilities”)Parent Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, claims or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, agent, partners, member, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction, (y) a material breach of any obligations under any Credit Document by such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, member, agent, partners, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than (1) any claims against an Indemnitee in its controlled Affiliates capacity or controlling Persons in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and (2) any claims arising out of any act or omission of the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decisionjudgment of a court of competent jurisdiction), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to . To the extent such disputes do not arise from that the undertakings to indemnify and hold harmless set forth in this Section 10.05 may be unenforceable in whole or in part because they are violative of any act applicable law or omission of public policy, the Parent 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 its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except for direct (as opposed to indirect, special, punitive or consequential) damages resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of any such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability and each party hereby waives, any claim against any other party to this Agreement or any Indemnitee for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Effective Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses related thereto). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Credit Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply to Taxes Taxes, other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to resulting from a non-Tax claim. To the extent that the Borrowers for any reason fails to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), L/C Issuers or any Related Party of any of the foregoing(and without limiting the Borrowers’ obligation to do so), each Appropriate Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), L/C Issuers or such Related Party, as the case may be, such Xxxxxx’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or an L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or any L/C Issuer in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arranger, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, advisorsattorneys-in-fact, trustees and other representatives advisors (collectively, collectively the “Indemnitees”) from and against any and all liabilities, obligations, actual losses, liabilitiesactual damages, damagespenalties, claims, demands, actions, judgments, suits, reasonable costs, reasonable expenses and reasonable and documented or invoiced out-of-pocket fees and expenses disbursements (including reasonable Attorney Costs (which shall be limited to one (1) counsel to the Administrative Agent, the other Agents, the Arrangers and the Lenders (exclusive of one counsel for all Indemnitees and, if necessary, one firm of local counsel to the Administrative Agent, the other Agents, the Arrangers and the Lenders in each appropriate jurisdiction jurisdiction), unless (which may include a single special counsel acting in multiple jurisdictionsw) for all Indemnitees (andthe interests of the Administrative Agent, the other Agents, the Arrangers and the Lenders are sufficiently divergent, in which case one (1) additional counsel may be appointed, or (x) the case representation of any Lender or group of Lenders would be inappropriate or impracticable or create an actual or perceived potential conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of one (1) additional counsel for such affected IndemniteeLender or group of Lenders may be appointed or (y) the interests of any Lender or group of Lenders (other than all of the Lenders) are distinctly or disproportionately affected, one (1) additional counsel for such Lender or group of Lenders)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)therefrom, or (c) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent any Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is instituted by a third party or by any Borrower or any other Loan Party) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) have been determined in the gross negligencefinal, bad faith or willful misconduct non-appealable judgment of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee)any Indemnitee or any of its directors, officers or employees or a material breach of the Loan Documents by any Indemnitee or (y) arise from claims of any of the Lenders solely against one or more Lenders (and not by one or more Lenders against the Administrative Agent or one or more of the other Agents) that have not resulted from the action, inaction, participation or contribution of any Borrower or their respective Subsidiaries or other Affiliates or any of their respective officers, directors, stockholders, partners, members, employees, agents, representatives or advisors. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Effective Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 12.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 12.05 shall be paid promptly (but in any event within ten thirty (1030) Business Days days) after written demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.0512.05. The agreements in this Section 10.05 12.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Senior Subordinated Term Loan Agreement (Sensata Technologies B.V.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Loan Party shall indemnify the Administrative Agent (and any sub-agent thereof), each other Secured Party and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold harmless each Agent-Related PersonIndemnitee from, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilitiesclaims, damages, claimsliabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (limited to reasonable fees, disbursements and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs other charges of one primary counsel for all Indemnitees Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees Indemnitees, taken as a whole, and one firm of special regulatory counsel for all Indemnitees, taken as a whole (and, in the case of an actual or perceived potential conflict of interest, where the an Indemnitee affected by such conflict informs the Parent Borrower Agent of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for such affected Indemnitee and one firm of special regulatory counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by the Borrowers or any other Loan Party arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated therebyhereby or thereby or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 4.01), (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom therefrom, (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its Subsidiaries, (iv) any claims of, or amounts paid by any Secured Party to, a Controlled Account Bank or other Person which has entered into a control agreement with any Secured Party hereunder or (dv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Borrowers or arisingany other Loan Party, in whole or in part, out and regardless of the negligence of the Indemniteewhether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a by final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees nonappealable judgment to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers shall, the Borrowers shall jointly and severally, indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each the Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisorspartners, members, advisors and other representatives of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, losses, liabilities, damages, claimsclaims and expenses (including Attorney Costs, but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel for to all Indemnitees taken as a whole and, if reasonably necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (therefrom, including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such the Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to of the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all a “Proceeding”) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by the foregoing, collectively, the “Indemnified Liabilities”)Parent Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, claims or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, agent, partners, member, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction, (y) a material breach of any obligations under any Credit Document by such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, member, agent, partners, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than (1) any claims against an Indemnitee in its controlled Affiliates capacity or controlling Persons in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and (2) any claims arising out of any act or omission of the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decisionjudgment of a court of competent jurisdiction), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to . To the extent such disputes do not arise from that the undertakings to indemnify and hold harmless set forth in this Section 10.05 may be unenforceable in whole or in part because they are violative of any act applicable law or omission of public policy, the Parent 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 its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except for direct (as opposed to indirect, special, punitive or consequential) damages resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of any such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability and each party hereby waives, any claim against any other party to this Agreement or any Indemnitee for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Effective Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses related thereto). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Credit Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply to Taxes Taxes, other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to resulting from a non-non- Tax claim. To the extent that the Borrowers for any reason fails to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), L/C Issuers or any Related Party of any of the foregoing(and without limiting the Borrowers’ obligation to do so), each Appropriate Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), L/C Issuers or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or an L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or any L/C Issuer in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify the Administrative Agent, each Issuing Lender and hold harmless each Agent-Related Person, each Lender, and each Lead Arranger, Related Party of any of the Syndication Agent, foregoing Persons (each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the such Person being called an “IndemniteesIndemnitee”) from and against against, and hold each Indemnitee harmless from, any and all lossesLiabilities and related costs, liabilitiesexpenses and disbursements, damagesincluding the reasonable fees, claimscharges and disbursements of any counsel (limited to a single outside counsel to such Indemnitees, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessarytaken as a whole, one firm of local counsel in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, solely in the case event of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counselone additional counsel (and, of another firm of if necessary, one local counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding in each relevant jurisdiction (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at include a single special counsel acting in multiple jurisdictions)), to each group of similarly situated affected Indemnitees taken as a whole) for any time be imposed onIndemnitee, incurred by or asserted against any such Indemnitee in or to which any way relating to or Indemnitee may become subject, arising out of or of, in connection with with, or as a result of (ai) the execution, delivery, enforcement, performance execution or administration delivery of any Loan Document this Agreement or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated therebyhereby, (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer any Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent BorrowerHoldings, any Subsidiary Borrower or any other Loan Partyof their Subsidiaries, or any Environmental Liability Claim related in any way to the Parent BorrowerHoldings, any Subsidiary Borrower or any other Loan Partyof their Subsidiaries, (iv) any act or omission of the Administrative Agent in connection with the administration of this Agreement or any agreement or instrument contemplated hereby, or (dv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including and regardless of whether any investigation ofIndemnitee is a party thereto or whether brought by Holdings, preparation forany Borrower, any of their Affiliates or defense of equity holders or any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemniteeother party; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, Liabilities or related expenses or disbursements resulted from (x) the gross negligence, willful misconduct or bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (Related Parties as determined by a court of competent jurisdiction in a by final and non-appealable decision)nonappealable judgment, (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in Related Parties of its capacity as an Agent or Lead Arranger or similar role obligations under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out determined by a court of its activities in connection herewith or therewith (whether before or after the Closing Date)competent jurisdiction by final and nonappealable judgment. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.112
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers, the Borrowers on a joint and several basis, shall indemnify and hold harmless each Agent, Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and Arranger and their respective Affiliatescontrolled Affiliates and controlling Persons, and their respective officers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of each of the foregoing and their respective successors (collectively, collectively the “Indemnitees”) from and against any and all actual liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel for to all Indemnitees taken as a whole and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andtaken as a whole in each relevant jurisdiction that is material to the interests of the Lenders, and solely in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Representative of such conflict and thereafter retains its own counsel, counsel one additional counsel in each relevant jurisdiction to each group of another firm of counsel for such similarly situated affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates counsel obtained with the Borrower Representative’s consent (such consent not to the Transactionbe unreasonably withheld or delayed), including the financing contemplated herebyjoint or several, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials at, on, at, under or from any property or facility currently or formerly owned owned, leased or operated by the Parent Borrower, any Subsidiary Loan Parties or any other Loan PartySubsidiary, or any Environmental Liability related in (other than any way to such presence, Release or Environmental Liability resulting solely from acts or omissions by Persons other than the Parent Borrower, any Subsidiary Loan Parties or any other Loan Partyof their Subsidiaries after the Administrative Agent sells the respective property pursuant to a foreclosure or has accepted a deed in lieu of foreclosure), or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the a “Indemnified LiabilitiesProceeding”)) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by a Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available (i) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directors, employees, agentspartners, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under this Agreement or any other Loan Documents Document by such Indemnitee or one any of its Affiliates controlled Affiliates, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrowers, the Sponsor or any of its their Affiliates or (other than ii) with respect to a claim against any settlement entered into by an Indemnitee acting in its capacity as an Agent without the Borrower Representative’s written consent (such consent not to be unreasonably withheld or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemniteedelayed). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, in each case, except to the extent any such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of, or a material breach of any obligations under this Agreement or any other Loan Document by, such Indemnitee or any of its controlled Affiliates, nor shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); it being agreed that this sentence shall not limit the indemnification obligations of Holdings or any Subsidiary (including, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders equity holders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. By accepting the benefits hereof, each Indemnitee agrees to refund and return any and all amounts paid by the Borrowers to such Indemnitee to the extent items in clauses (w) through (y) above occur. All amounts due under this Section 10.05 shall be paid within ten 10 days after written demand therefor (10) Business Days after demand therefortogether with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc.penalties, with respect to a claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claims. To the extent that the Borrowers for any reason fail to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent or Collateral Agent (or any sub-agent thereof), the L/C Issuers, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent or Collateral Agent (or any such sub-agent), the L/C Issuers or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuers or the Swing Line Lender in their capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) any L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 1 contract
Samples: Credit Agreement (Blucora, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers shall, the Borrowers shall jointly and severally, indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each the Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisorspartners, members, advisors and other representatives of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, losses, liabilities, damages, claimsclaims and expenses (including Attorney Costs, but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel for to all Indemnitees taken as a whole and, if reasonably necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (therefrom, including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such the Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to of the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all a “Proceeding”) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by the foregoing, collectively, the “Indemnified Liabilities”)Parent Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, claims or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, agent, partners, member, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction (y) a material breach of any obligations under any Loan Document by such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, member, agent, partners, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than (1) any claims against an Indemnitee in its controlled Affiliates capacity or controlling Persons in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and (2) any claims arising out of any act or omission of the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decisionjudgment of a court of competent jurisdiction), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to . To the extent such disputes do not arise from that the undertakings to indemnify and hold harmless set forth in this Section 10.05 may be unenforceable in whole or in part because they are violative of any act applicable law or omission of public policy, the Parent 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 its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except for direct (as opposed to indirect, special, punitive or consequential) damages resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of any such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability and each party hereby waives, any claim against any other party to this Agreement or any Indemnitee for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses related thereto). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply to Taxes, or amounts excluded from the definition of Taxes other than Taxes pursuant to clauses (i) through (ix) of the first sentence of Section 3.01(a), that represent liabilities, obligations, losses, damages, etc., are imposed with respect to a nonpayments to or for the account of any Agent or any Lender under any Loan Document, which, in each case, shall be governed by Section 3.01. This Section 10.05 also shall not apply to Other Taxes or to taxes covered by Section 3.04. To the extent that the Borrowers for any reason fails to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent (or any sub-Tax agent thereof), L/C Issuers or any Related Party of any of the foregoing(and without limiting the Borrowers’ obligation to do so), each Appropriate Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), L/C Issuers or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or an L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or any L/C Issuer in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent L/C Issuer and their respective Affiliates, directors, officers, employees, partners, equity holders, members, controlling persons, counsel, agents, trustees, advisors, and other representatives and the successors and assigns of each of the foregoing (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an 195 actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Lead Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent any Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the TransactionTransactions, including the financing contemplated hereby, ) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the negotiation, execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent BorrowerHoldings, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent BorrowerHoldings, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that provided, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction Transactions (as determined by a court of competent jurisdiction in a final and non-appealable decisionjudgment), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable judgment) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Holdings, any Borrower or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeIndemnitee (as determined by a court of competent jurisdiction in a final and non-appealable judgment)). No Without in any way limiting the indemnification obligations of the Loan Parties under this Section 10.05, no Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date)) other than any punitive, indirect or consequential damages that otherwise represent Indemnified Liabilities of any Loan Party arising from a claim by a third party unaffiliated with any Indemnitee. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten promptly, and in no event later than thirty (1030) Business Days calendar days, after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Loan Documents and the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes Taxes, other than any Taxes that represent losses, liabilities, obligations, losses, damages, claims, etc., with respect to a . arising from any non-Tax claim.
Appears in 1 contract
Samples: First Lien Credit Agreement (ONESPAWORLD HOLDINGS LTD)
Indemnification by the Borrowers. Whether Each Borrower shall indemnify, severally in accordance with its respective Facility-wide Liability Percentage and not jointly, the Administrative Agent (and any sub-agent thereof), each Lender, each L/C Administrator and each Fronting Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of a law firm as counsel for all Indemnitees in connection with any event or not circumstance giving rise to claims hereunder except that if, in the transactions contemplated hereby are consummatedreasonable opinion of an Indemnitee, representation of all Indemnitees by one firm as counsel would be inappropriate due to the existence of an actual or potential conflict of interest, the Borrowers shall reimburse the reasonable fees and charges of no more than the number of additional law firms as counsel for the various Indemnitees as is necessary to avoid any such actual or potential conflict of interest), and shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) Indemnitee from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel time charges and disbursements for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which attorneys who may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) be employees of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed onIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Parent Borrower or any of its Subsidiaries) other than such Indemnitee in any way relating to or and its Related Parties arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any Loan other Credit Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby 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 the Administrative Agent (band any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Credit Documents (including in respect of any matters addressed in Section 3.01), (ii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer the Applicable Issuing Party to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Parent Borrower or arisingany of its Subsidiaries, in whole or in partand regardless of whether any Indemnitee is a party thereto, out of the negligence of the IndemniteeIN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of (y) result from a claim brought by the Parent Borrower or any of its controlled Affiliates Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or controlling Persons under any other Credit Document, if the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, such Subsidiary has obtained a final and nonappealable judgment in each case who are involved in or aware of the Transaction (its favor on such claim as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligationsjurisdiction. For the avoidance of doubt, this Section 10.05 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent liabilitieslosses, obligations, lossesclaims, damages, etc., with respect to a . arising from any non-Tax claim.. 115
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, advisors, auditors, representatives and other representatives attorneys-in-fact (collectively, the “Indemnitees”) from and against any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses (including Attorney Costs, but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one firm of counsel for to all Indemnitees taken as a whole and, if reasonably necessary, one firm of local counsel to the Indemnitees taken as a whole in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another one additional firm of counsel to each group of similarly situated affected Indemnitees and, if applicable, one additional firm of local counsel in each relevant jurisdiction for such affected Indemnitee)group of Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever (other than Taxes and Other Taxes, which are governed by Sections 2.15 herein) which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated therebythereby or any related transaction, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter the syndication and establishment of Credit if the documents presented in connection with such demand do not strictly comply with Facility and the terms 153 use of such Letter of Creditproceeds thereof), or (c) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding (a “Proceeding”) relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee and whether such Indemnified Liabilities are brought by the Borrowers, the Borrowers’ equity holders, affiliates, creditors or any other person; provided that such indemnity shall not, as to any Indemnitee, be available apply to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) to the gross negligenceextent they are found by a final, bad faith or willful misconduct non-appealable judgment of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, (y) to the extent not resulting from an act or omission by the Borrowers or any of their affiliates and that have been brought by an Indemnitee against any other Indemnitee (other than any claims against the Administrative Agent or any other Agent in its capacity or in fulfilling its role as an arranger or agent or any similar role under this Agreement) or (z) to the extent they are found by a final, non-appealable judgment of a court of competent jurisdiction to arise from a material breach in bad faith of the agreements of such Indemnitee under this Agreement (other than any claims against the Administrative Agent or any other Agent in its capacity or in fulfilling its role as an arranger or agent or any similar role under this Agreement). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided, that nothing contained in this sentence shall limit the Loan Parties’ indemnification obligations to the extent such special, indirect, consequential and punitive damages are included in any third party claim in connection with which any Indemnitee is entitled to indemnification hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 9.04 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 9.04 shall be paid within ten (10) Business Days promptly after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.059.04. The agreements in this Section 10.05 9.04 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 The Borrowers shall not apply be liable for any settlement of any Proceeding if the amount of such settlement was effected without the Borrowers’ prior written consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrowers’ written consent or if there is a final, non-appealable judgment in any such Proceedings, the Borrowers agree to Taxes other than Taxes that represent liabilitiesindemnify and hold harmless each Indemnitee from and against any and all losses, obligations, lossesclaims, damages, etc.liabilities and expenses by reason of such settlement or judgment in accordance with the terms of the preceding paragraph. The entering into of any such settlement or compromise or consent without the Borrowers’ prior written consent (unless the withholding of such consent by the Borrowers requested by such Indemnitee shall have been unreasonable) shall constitute a waiver by such Indemnitee of its rights of indemnification hereunder in respect of such matter. Conversely, with the Borrowers shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (a) such settlement includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee or any injunctive relief or other non-Tax claimmonetary remedy.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each the Administrative Agent-Related Person, the Arrangers, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent L/C Issuer and their respective Affiliates, officers, directors, officerspartners, members, employees, counsel, agents, advisors, agents and other representatives Controlling Persons (collectively, the each an “IndemniteesIndemnified Party”) from and against (and will reimburse each Indemnified Party for) any and all losses, liabilitiesclaims, damages, claimsliabilities and expenses, (including the legal fees and expenses of counsel (limited to the reasonable and documented or invoiced out-of-pocket legal fees and expenses (including reasonable Attorney Costs of one firm of counsel for all Indemnitees the Indemnified Parties taken as a whole and, if necessary, one local firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, in each case, acting for the case Indemnified Parties taken as a whole and in the event of an any actual or perceived conflict of interest, one additional firm of counsel for each Indemnified Party subject to such conflict where the Indemnitee party affected by such conflict informs notifies the Parent Borrower Borrowers of the existence of such conflict and and, after receipt of the Borrowers’ consent (which consent shall not be unreasonably withheld or delayed), thereafter retains its own counsel, of counsel by another firm of counsel for such affected Indemnitee)Indemnified Party) of any such Indemnitee arising out of and other reasonable and documented out-of-pocket expenses incurred in connection with investigation or relating to any claim defending the Indemnified Liabilities) joint or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated herebyseveral, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee Indemnified Party in any way relating to or arising out of or in connection with or by reason of (a) the execution, delivery, enforcement, performance or administration of this Agreement or any other Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated hereby or thereby or the consummation of the transactions contemplated hereby or thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)) (including any claims brought by the Borrowers, any Loan Party, their Affiliates and their respective equity holders or their Affiliates) or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding in any way relating to to, arising out of, in connection with or by reason of any of the foregoingforegoing (any of the forgoing, whether based on contracta “Proceeding”), tort including for the avoidance of doubt any Environmental Liability related in any way to the Borrowers, any Subsidiary or any other theory (including Loan Party and, regardless of whether any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) Indemnified Party is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided, in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any IndemniteeIndemnified Party, be available (i) to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a by final and non-appealable decisionnonappealable judgment to have resulted from (A) the bad faith, gross negligence or willful misconduct of such Indemnified Party (or any Related Person thereof acting under the direction of such Indemnified Party), or (yB) a material breach in bad faith of its obligations under the Loan Documents by such Indemnitee Indemnified Party (or one of its Affiliates any Related Person thereof) or (zii) disputes in connection with any dispute or Proceeding solely between and among such Indemnitees to Indemnified Parties other than claims (x) against the extent such disputes do not arise from Administrative Agent or an Arranger in its capacity or fulfilling its roles as Arranger or Administrative Agent or (y) arising out of any act or omission of the Parent Borrower Borrowers or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)Party. No Indemnitee Indemnified Party shall be liable to the Borrowers or any other Loan Party for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems (including electronic telecommunications) in connection with this AgreementAgreement other than for direct or actual damages resulting from the bad faith, gross negligence or willful misconduct of such Indemnified Party (or any Related Person thereof) as determined by a final and nonappealable judgment of a court of competent jurisdiction, nor shall any Indemnitee Indemnified Party or any Loan Party have any liability to the Borrowers or any other Loan Party for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In ; provided that nothing contained in this sentence shall limit the case of an investigation, litigation or other proceeding to which the indemnity Loan Parties’ indemnification obligations set forth in this Section 10.05 applies11.05 to the extent such special, punitive, indirect or consequential damages are included in any third party claim in connection with which any Indemnified Party is entitled to indemnification hereunder. The Borrowers and any other Loan Parties shall not be liable for any settlement of any Proceeding effected without their written consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Loan Parties’ written consent, the Loan Parties agree to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with the other provisions of this Section 11.05. The Loan Parties shall not, without the prior written consent of any Indemnified Party (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceedings in respect of which indemnity shall be effective whether could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims that are the subject matter of such proceedings and (ii) does not such investigation, litigation or proceeding is brought by include any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee statement as to or any other Personadmission of fault, whether culpability, wrongdoing or not a failure to act by or on behalf of any Indemnitee is otherwise a party thereto and whether or not Indemnified Party. Notwithstanding any of the transactions contemplated hereunder or under any of the other Loan Documents foregoing, if (i)(x) it is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provideddetermined by a final, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax appealable judgment of a court of competent jurisdiction that any loss, claim., damage, liability or expense of an Indemnified Party
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall jointly and severally indemnify the Administrative Agent (and hold harmless each Agentany sub-Related Personagent thereof), each Lender, each Lead Arranger, the Syndication Collateral Agent, each Documentation Agent Lender and their respective Affiliates, directors, officers, employees, counsel, agents, advisorseach L/C Issuer, and other representatives each Related Party of any of the foregoing Persons (collectively, the each such Person being called an “IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all losses, liabilitiesclaims, damages, claims, liabilities and reasonably related expenses (includingbut limited in the case of legal fees to the reasonable and documented or invoiced fees, out-of-pocket fees charges and expenses (including reasonable Attorney Costs disbursements of one counsel for all Indemnitees the Indemnitees, taken as a whole, and, if reasonably necessary, one firm of local counsel retained by the Indemnitees, taken as a whole 161 in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, relevant material jurisdiction; provided that in the case event of an a potential or actual or perceived conflict of interestinterest among any of the Indemnitees, where the Indemnitee affected by such conflict informs Borrowers shall pay for the Parent Borrower reasonable and documented fees, out-of-pocket charges and disbursements of such conflict and thereafter retains its own counsel, of another firm of anyone additional counsel for such affected Indemnitee)any Indemniteesuch Indemnitees, taken as a whole) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by any Borrower or any other Loan Party arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (band any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by any Borrower or arisingany other Loan Party or any such Borrower's or such Loan Party's directors, in whole shareholders or in partcreditors, out and regardless of the negligence of the Indemniteewhether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of (y) result from a claim brought by any of its controlled Affiliates or controlling Persons Borrower or any other Loan Party against an Indemnitee for breach of the officerssuch Indemnitee's obligations hereunder or under any other Loan Document, directors, employees, agents, advisors if such Borrower or members of any of the foregoing, such Loan Party has obtained a final and nonappealable judgment in each case who are involved in or aware of the Transaction (its favor on such claim as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etcjurisdiction., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Nortek Inc)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentL/C Issuer, each Documentation Agent Lead Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent any Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeIndemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Acquisition Closing Date); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such if the Borrowers have reimbursed any Indemnitee shall promptly refund such amount to the extent that for any legal or other expenses in connection with any Indemnified Liabilities and there is a final judicial or arbitral determination non-appealable judgment of a court of competent jurisdiction that such the Indemnitee was not entitled to indemnification or contribution rights with respect to such payment Indemnified Liabilities pursuant to the express terms of this Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Arranger, each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentL/C Issuer, each Documentation Agent and of their respective AffiliatesAffiliates and each partner, directorscontrolling person, officersdirector, employeesofficer, employee, counsel, agentsagent and representative of the foregoing and, advisorsin the case of any funds, trustees and other representatives advisors and attorneys-in-fact (collectively, the “Indemnitees”) from and against (and will reimburse each Indemnitee, as and when incurred, for) any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs the fees, disbursements and other charges of (i) one counsel for all to the Indemnitees andtaken as a whole, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictionsii) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Representative of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates in each relevant jurisdiction material to the Transactioninterests of the Indemnitees, including and (iii) if necessary, one local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions and, solely in the financing contemplated herebyevent of an actual or perceived conflict of interest, one additional counsel in each applicable jurisdiction material to the interests of the affected Persons (or each group of affected Persons) taken as a whole) and special counsel for each relevant specialty) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (x) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the following, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, thereby or (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, disbursements, fees or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision)judgment to have resulted from (A) the bad faith, (y) a material breach gross negligence or willful misconduct of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates or controlling persons or any of the officers, directors, employees, agents, advisors, or members of any of the foregoing or (B) any dispute that is among Indemnitees (other than with respect to a claim any dispute involving claims against an Indemnitee acting in its capacity as an Agent or Lead the Administrative Agent, any Arranger or similar role any other Agent, the Swing Line Lender or any L/C Issuer, in each case in their respective capacities as such, or any Initial Lender solely in connection with its syndication activities as contemplated under the Loan Documents unless Commitment Letter) that a court of competent jurisdiction has determined in a final and non-appealable judgment did not involve actions or omissions of any direct or indirect parent or controlling person of a Borrower or its Subsidiaries; or (y) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by Holdings or any of its Subsidiaries, or any Environmental Liability related in any way to Holdings or any of its Subsidiaries, ((x) and (y), collectively, the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and regardless of whether such claim arose from the gross negligenceIndemnitee is a party thereto, bad faith and whether or willful misconduct of not such Indemnitee)proceedings are brought by a Borrower, its equity holders, its Affiliates, creditors or any other third person. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks the Platform or other similar information transmission systems (including electronic telecommunications) in connection with this AgreementAgreement unless determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that such waiver of special, punitive, indirect or consequential damages shall not limit the indemnification obligations of the Loan Parties under this Section 10.05. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders shareholders or creditors or an Indemnitee or any other Person, and whether or not any Indemnitee is otherwise a party thereto thereto. Should any investigation, litigation or proceeding be settled, or if there is a judgment against an Indemnitee in any such investigation, litigation or proceeding, the Borrowers shall indemnify and whether hold harmless each Indemnitee in the manner set forth above; provided that the Borrowers shall not be liable for any settlement effected without the Borrowers’ prior written consent (such consent not to be unreasonably withheld, delayed or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummatedconditioned). All amounts due under this Section 10.05 shall be paid payable within ten (10) Business Days 30 days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation or removal of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., any claims with respect to a non-Tax claimTaxes (other than any Taxes imposed on payments received pursuant to this Section 10.05).
Appears in 1 contract
Samples: First Lien Credit Agreement (Pivotal Acquisition Corp)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Loan Party shall indemnify the Administrative Agent (and any sub-agent thereof), each other Secured Party and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold harmless each Agent-Related PersonIndemnitee from, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilitiesclaims, damages, claimsliabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (limited to reasonable fees, disbursements and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs other charges of one primary counsel for all Indemnitees Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees Indemnitees, taken as a whole, and one firm of special regulatory counsel for all Indemnitees, taken as a whole (and, in the case of an actual or perceived potential conflict of interest, where the an Indemnitee affected by such conflict informs the Parent Borrower Agent of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for such affected Indemnitee and one firm of special regulatory counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by the Borrowers or any other Loan Party arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated therebyhereby or thereby or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 4.01), (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C the Letter of Credit Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its Subsidiaries, (iv) any claims of, or amounts paid by any Secured Party to, a Controlled Account Bank or other Person which has entered into a control agreement with any Secured Party hereunder or (dv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Borrowers or arisingany other Loan Party, in whole or in part, out and regardless of the negligence of the Indemniteewhether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a by final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees nonappealable judgment to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall jointly and severally indemnify and hold harmless each Agent-Related Person, each Lender, each Lead L/C Issuer, each Arranger, the Syndication Agent, each Documentation Agent and of their respective Affiliates, Affiliates and the respective directors, officers, employees, counsel, agents, advisors, and other representatives and the successors and permitted assigns of each of the foregoing (without duplication) (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damagesdamages and claims (collectively, claimsthe “Losses”), and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one primary firm of counsel for all Indemnitees and, if necessary, one of a single firm of local counsel in each appropriate relevant material jurisdiction (which to the extent necessary, may include a single special counsel acting in for multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such actual or perceived conflict informs notifies the Parent Borrower Representative of the existence of such conflict and thereafter retains its own counselactual or perceived conflict, of another by one additional firm of counsel for all such affected IndemniteeIndemnitees)), but no other third-party advisors without your prior consent (not to be unreasonably withheld or delayed) of any such Indemnitee arising out of of, resulting from, or in connection with, any actual or threatened claim, litigation, investigation or proceeding (including any inquiry or investigation) relating to any claim this Agreement, the Transactions or any litigation related transaction contemplated hereby or other proceeding thereby, the Facilities or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnitee is a party thereto and whether or not such proceedings Proceedings are brought by the Parent BorrowerBorrowers, its equity holders, its Affiliates, their Affiliates or creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee party Person in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent BorrowerBorrowers, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent BorrowerBorrowers, any Subsidiary or any other Loan Party, or (d) any actual or prospective threatened claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, Losses and related expenses or disbursements resulted from (x) the gross negligencewillful misconduct, bad faith or willful misconduct gross negligence of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction Related Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one any Related Indemnitee (as determined by a court of its Affiliates competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct exceptions specified in clauses (x) and (y) (as determined by a court of such Indemniteecompetent jurisdiction in a final and non-appealable decision)). No Indemnitee Indemnitee, nor any other party hereto shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement and, nor shall without in any way limiting the indemnification obligations set forth above, no Indemnitee or any Loan Party shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that nothing contained in this sentence shall limit the Borrowers’ indemnification and reimbursement obligations to the extent such damages are included in any third-party claim in connection with which an Indemnitee is otherwise entitled to indemnification or reimbursement hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days thirty days after demand therefortherefor (together with reasonably detailed backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination decision in a court of competent jurisdiction that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Loan Documents, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim. It is agreed that the Loan Parties shall not be liable for any settlement of any Proceeding (or any expenses related thereto) effected without the Borrower Representative’s written consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower Representative’s written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, the Loan Parties agree to indemnify and hold harmless each Indemnitee from and against any and all Losses and reasonable and documented or invoiced legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 10.05. No Borrower shall, without the prior written consent of the applicable Indemnitee (which consent shall not be unreasonably withheld or delayed, it being understood that the withholding of consent due to non-satisfaction of any of the conditions described in clauses (i), (ii) and (iii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened Proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee from all liability or claims that are the subject matter of such Proceeding, (ii) does not include any statement as to or any admission of fault, culpability, wrongdoing or a failure to act by or on behalf of any Indemnitee, and (iii) contains customary confidentiality provisions with respect to the terms of such settlement.
Appears in 1 contract
Samples: Security Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives Related Persons (collectively, the “Indemnitees”) from and against any and all losses, liabilitiesclaims, damages, claimsliabilities or expenses (including Attorney Costs but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is Indemnitees similarly situated taken as a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (cwhole) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective threatened claim, litigation, investigation or proceeding relating to any the Transactions or to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents, the Loans or the use, or proposed use of the foregoingproceeds therefrom, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigationlitigation, litigation investigation or proceeding) ), and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Related Indemnified Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a final, non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one any of its Affiliates Related Indemnified Persons as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Loan Document and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect as determined by a final, non-appealable judgment of a court of competent jurisdiction). To the extent that the undertakings to a claim against an Indemnitee acting indemnify and hold harmless set forth in its capacity as an Agent this Section 10.05 may be unenforceable in whole or Lead Arranger in part because they are violative of any applicable law or similar role public policy, the Borrowers shall contribute the maximum portion that they are permitted to pay and satisfy under applicable law to the Loan Documents unless such claim arose from payment and satisfaction of all Indemnified Liabilities incurred by the gross negligence, bad faith Indemnitees or willful misconduct any of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party for which such Indemnitee is otherwise entitled to indemnification pursuant to this Section 10.05). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten twenty (1020) Business Days after written demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.this
Appears in 1 contract
Samples: Syndicated Facility Agreement (DTZ Jersey Holdings LTD)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and each Co-Manager and each of their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Lead Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrowerany Company, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, in, under or from any property currently or formerly owned owned, leased or operated by the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its respective Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its controlled Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of any Company or -159- 723481589 expressly contemplated hereby, the Parent Borrower Indemnities) any legal or any equitable right, remedy or claim under or by reason of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Yum Brands Inc)
Indemnification by the Borrowers. Whether Each Borrower shall indemnify, severally in accordance with its respective Facility-wide Liability Percentage and not jointly, the Administrative Agent (and any sub-agent thereof), each Lender, each L/C Administrator and each Fronting Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of a law firm as counsel for all Indemnitees in connection with any event or not circumstance giving rise to claims hereunder except that if, in the transactions contemplated hereby are consummatedreasonable opinion of an Indemnitee, representation of all Indemnitees by one firm as counsel would be inappropriate due to the existence of an actual or potential conflict of interest, the Borrowers shall reimburse the reasonable fees and charges of no more than the number of additional law firms as counsel for the various Indemnitees as is necessary to avoid any such actual or potential conflict of interest), and shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) Indemnitee from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel time charges and disbursements for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which attorneys who may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) be employees of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed onIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Parent Borrower or any of its Subsidiaries) other than such Indemnitee in any way relating to or and its Related Parties arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any Loan other Credit Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby 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 the Administrative Agent (band any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Credit Documents (including in respect of any matters addressed in Section 3.01), (ii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer the Applicable Issuing Party to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Borrower or any other Loan Partyof its Subsidiaries, or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Parent Borrower or arisingany of its Subsidiaries, in whole or in partand regardless of whether any Indemnitee is a party thereto, out of the negligence of the IndemniteeIN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) are determined 129 by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of (y) result from a claim brought by the Parent Borrower or any of its controlled Affiliates Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or controlling Persons under any other Credit Document, if the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, such Subsidiary has obtained a final and nonappealable judgment in each case who are involved in or aware of the Transaction (its favor on such claim as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligationsjurisdiction. For the avoidance of doubt, this Section 10.05 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent liabilitieslosses, obligations, lossesclaims, damages, etc., with respect to a . arising from any non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Loan Party shall indemnify the Administrative Agent (and any sub-agent thereof), each other Secured Party and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold harmless each Agent-Related PersonIndemnitee from, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilitiesclaims, damages, claimsliabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel (limited to reasonable fees, disbursements and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs other charges of one primary counsel for all Indemnitees Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees Indemnitees, taken as a whole, and one firm of special regulatory counsel for all Indemnitees, taken as a whole (and, in the case of an actual or perceived potential conflict of interest, where the an Indemnitee affected by such conflict informs the Parent Borrower Agent of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for such affected Indemnitee and one firm of special regulatory counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by the Borrowers or any other Loan Party arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated therebyhereby or thereby or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 4.01), (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C the Letter of Credit Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its Subsidiaries, (iv) any claims of, or amounts paid by any Secured Party to, a Controlled Account Bank or other Person which has entered into a control agreement with any Secured Party hereunder or (dv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all casestheory, whether brought by a third party or not caused by the Borrowers or arisingany other Loan Party, in whole or in part, out and regardless of the negligence of the Indemniteewhether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.,
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummatedThe Borrowers shall, the Borrowers shall jointly and severally, indemnify and hold harmless each Agent-Related Personthe Agents, each Lender, each the Lead Arranger, the Syndication Agent, each Documentation Agent Arrangers and their respective Affiliates, directors, officers, employees, counsel, agents, advisorspartners, members, advisors and other representatives of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities, losses, liabilities, damages, claimsclaims and expenses (including Attorney Costs, but limited, in the case of legal fees and expenses, to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel for to all Indemnitees taken as a whole and, if reasonably necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andrelevant jurisdiction, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (therefrom, including any refusal by an a L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such the Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to of the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all a “Proceeding”) and regardless of whether any Indemnitee is a party thereto or whether or not such Proceeding is brought by the foregoing, collectively, the “Indemnified Liabilities”)Parent Borrower or any other person and, in all caseseach case, whether or not caused by or arising, in whole or in part, out of the negligence of the IndemniteeIndemnitee (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, claims or expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, agent, partners, member, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction (y) a material breach of any obligations under any Loan Document by such Indemnitee or of any Affiliate, controlling persons, director, officer, employee, member, agent, partners, advisor or other representative of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than (1) any claims against an Indemnitee in its controlled Affiliates capacity or controlling Persons in fulfilling its role as an administrative agent or arranger or any similar role under any Facility and (2) any claims arising out of any act or omission of the Parent Borrower or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decisionjudgment of a court of competent jurisdiction), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to . To the extent such disputes do not arise from that the undertakings to indemnify and hold harmless set forth in this Section 10.05 may be unenforceable in whole or in part because they are violative of any act applicable law or omission of public policy, the Parent 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 its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee)them. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this AgreementAgreement (except for direct (as opposed to indirect, special, punitive or consequential) damages resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of any such Indemnitee), nor shall any Indemnitee or any Loan Party have any liability and each party hereby waives, any claim against any other party to this Agreement or any Indemnitee for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses related thereto). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply to Taxes, or amounts excluded from the definition of Taxes other than Taxes pursuant to clauses (i) through (viii) of the first sentence of Section 3.01(a), that represent liabilities, obligations, losses, damages, etc., are imposed with respect to a nonpayments to or for the account of any Agent or any Lender under any Loan Document, which, in each case, shall be governed by Section 3.01. This Section 10.05 also shall not apply to Other Taxes or to taxes covered by Section 3.04. To the extent that the Borrowers for any reason fails to indefeasibly pay any amount required under this Section 10.05 or Section 10.04 to be paid by it to the Administrative Agent (or any sub-Tax agent thereof), the L/C Issuer or any Related Party of any of the foregoing (and without limiting the Borrowers’ obligation to do so), each Appropriate Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 2.12(e).
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Borrower shall indemnify and hold harmless each Arranger, each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentL/C Issuer, each Documentation Agent and of their respective AffiliatesAffiliates and each partner, directorsdirector, officersofficer, employeesemployee, counsel, agentsagent and representative of the foregoing and, advisorsin the case of any funds, trustees and other representatives advisors and attorneys-in-fact (collectively, the “Indemnitees”) from and against (and will reimburse each Indemnitee, as and when incurred, for) any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements, and reasonable and documented or invoiced out-of-pocket fees and expenses (including but (x) limited, in the case of legal fees and expenses, to the reasonable Attorney Costs and documented out-of-pocket fees, disbursements and other charges of (i) one counsel for all to the Indemnitees andtaken as a whole, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictionsii) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Indemnitee)Indemnitee in each relevant jurisdiction material to the interests of the Lenders, and (iii) if reasonably necessary, one local counsel in each jurisdiction material to the interests of the Indemnitees (which may include a single special counsel acting in multiple jurisdictions) and (y) excluding the fees and expenses of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a third-party thereto and whether or not such proceedings are brought by advisors retained without the Parent Borrower, its equity holders, its Affiliates, creditors or any other third personBorrowers’ prior written consent) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (x) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the following, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, thereby or (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, disbursements, fees or related expenses or disbursements resulted from (xA) the bad faith, gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons persons or any of the officers, directors, 239 employees, agents, advisors advisors, or members of any of the foregoing, in each as the case who are involved in or aware of the Transaction (may be, as determined by a court of competent jurisdiction in a final and non-appealable decision), (yB) a material breach of the Loan Documents by such Indemnitee Arranger, Agent- Related Person, Lender, L/C Issuer (or one any of its Affiliates their respective Affiliates, partners, directors, officers, employees, counsel, agents and representatives), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision or (zC) disputes solely between and any dispute that is among such Indemnitees to (other than any dispute involving claims against the extent such disputes do Administrative Agent, any Arranger or any other Agent or any L/C Issuer, in each case in their respective capacities as such) that did not arise involve actions or omissions of the Borrowers or their respective Subsidiaries or any of their respective Affiliates; or (y) any actual or alleged presence or Release of Hazardous Materials on or from any act property currently or omission formerly owned or operated by the Borrowers or their respective Subsidiaries and any other Environmental Liability of the Parent Borrower or any of its Affiliates Subsidiaries (other than with respect (x) and (y), collectively, the “Indemnified Liabilities”), in all cases, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks the Platform or other similar information transmission systems (including electronic telecommunications) in connection with this AgreementAgreement unless determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that such waiver of special, punitive, indirect or consequential damages shall not limit the indemnification obligations of the Loan Parties under this Section 10.05. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders shareholders or creditors or an Indemnitee or any other Person, and whether or not any Indemnitee is otherwise a party thereto thereto. Should any investigation, litigation or proceeding be settled, or if there is a judgment in any such investigation, litigation or proceeding, the Borrowers shall indemnify and whether or not any hold harmless each Indemnitee in the manner set forth above; provided that none of the transactions contemplated hereunder Borrowers shall be liable for any settlement effected without the Parent Borrower’s prior written consent (such consent not to be unreasonably withheld, delayed or under any of the other Loan Documents is consummatedconditioned). All amounts due under this Section 10.05 shall be paid payable within ten 30 days (10or such longer period as any Agent may agree to in its reasonable discretion) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to therefor (and after receipt by the extent that there is Parent Borrower of a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights reasonably detailed invoice with respect to such payment pursuant to the express terms of this Section 10.05thereto). The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply with respect to Taxes other than any Taxes that represent liabilitieslosses, obligations, lossesclaims, damages, etc., with respect to a . arising from any non-Tax claim. Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrowers under this Section 10.05 to such person for any losses, claims, damages, liabilities and expenses to the extent such person is not entitled to payment of such amounts in accordance with this Section 10.05.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)therefrom, or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.173
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers Each Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Administrative Agent, each Documentation Agent Lender and their respective Affiliatesthe Issuing Lender, directorswithin 20 days after written demand therefor, officersfor the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, employeessuch Lender or the Issuing Lender, counsel, agents, advisorsas the case may be, and other representatives (collectivelyany penalties, interest and reasonable expenses arising therefrom or with respect thereto ; provided that upon the request, and at the sole expense of, any Borrower, the “Indemnitees”) from and against any and all lossesAdministrative Agent, liabilitiessuch Lender or the Issuing Lender, damagesas the case may be, claimsshall reasonably afford such Borrower the opportunity to contest (at such Borrower's expense), and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees andreasonably cooperate with such Borrower in contesting, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) imposition of any Taxes giving rise to such Indemnitee arising out of amount; provided that (i) to the extent that any such Taxes are required by applicable law to be paid prior to commencing any such contest, such Borrower shall pay or relating to any claim or any litigation or other proceeding (regardless of whether reimburse such Indemnitee is a party thereto and Taxes whether or not such proceedings are brought Taxes were correctly or legally imposed or asserted by the Parent relevant Governmental Authority, (ii) such Borrower shall have confirmed in writing to such Person its obligation to pay such indemnity amounts pursuant to this Agreement, (iii) such Person shall have received at such Borrower's sole expense an opinion, its equity holdersin a form reasonably satisfactory to such Person, its Affiliates, creditors or any other third person) that relates of independent tax counsel selected by such Borrower and reasonably acceptable to such Person to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any effect that there exists a reasonable basis for such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated therebycontest, (biv) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand such Borrower shall reimburse such Person for payment under a Letter of Credit if the documents presented its reasonable attorneys' and accountants' fees and disbursements incurred in connection so cooperating with such demand do not strictly comply with the terms of such Letter of Credit), or Borrower in so contesting and (v) nothing in this paragraph (c) shall be construed to require such Person to rearrange its tax affairs other than as it sees fit in its sole discretion or to disclose or provide its tax returns or other information it reasonably considers confidential or proprietary to any actual Person. A certificate setting forth in reasonable detail the amount of such payment or alleged presence liability delivered to the Company by a Lender or Release the Issuing Lender, or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent BorrowerAdministrative Agent on its own behalf or on behalf of a Lender or the Issuing Lender, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etcconclusive absent manifest error., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Cambrex Corp)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentL/C Issuer, each Documentation Agent Lead Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent any Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the TransactionTransactionClosing Date Transactions or the Transactions, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (bix) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in 195 #95488248v20 connection with such demand do not strictly comply with the terms of such Letter of Credit), or (cx) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (dxi) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (Closing Date Transactions or the Transactions, as applicable (in each case as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeIndemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such if the Borrowers have reimbursed any Indemnitee shall promptly refund such amount to the extent that for any legal or other expenses in connection with any Indemnified Liabilities and there is a final judicial or arbitral determination non-appealable judgment of a court of competent jurisdiction that such the Indemnitee was not entitled to indemnification or contribution rights with respect to such payment Indemnified Liabilities pursuant to the express terms of this Section Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.196 #95488248v20
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Lender and their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent BorrowerBorrowers, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, Transaction (including the financing contemplated hereby, ) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent BorrowerBorrowers, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent BorrowerBorrowers, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons Per-sons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentL/C Issuer, each Documentation Agent Lead Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent any Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in any way to the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeIndemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such if the Borrowers have reimbursed any Indemnitee shall promptly refund such amount to the extent that for any legal or other expenses in connection with any Indemnified Liabilities and there is a final judicial or arbitral determination non-appealable judgment of a court of competent jurisdiction that such the Indemnitee was not entitled to indemnification or contribution rights with respect to such payment Indemnified Liabilities pursuant to the express terms of this Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication AgentCo-Manager, each Documentation Agent Lender, each L/C Issuer and their respective Affiliates, and their respective officers, directors, officers, employees, counselpartners, agents, advisors, advisors and other representatives of each of the foregoing (collectively, collectively the “Indemnitees”) from and against any and all liabilities (including Environmental Liabilities), obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented or invoiced out-of-pocket fees fees, disbursements and expenses (including reasonable Attorney Costs other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel for all Indemnitees and, if necessary, one firm of local counsel taken as a whole in each appropriate relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (andthat is material to the interests of the Lenders, and solely in the case of an actual or perceived a conflict of interest, where the Indemnitee one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected by such conflict informs the Parent Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)Indemnitees) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), Credit or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, 4849-7283-2717 240 whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), ) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the their respective directors, officers, directorsemployees, employeespartners, agents, advisors or members of any of the foregoingother representatives, in each case who are involved in or aware of the Transaction (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, (y) a material breach of the any obligations under any Loan Documents Document by such Indemnitee or one of any of its Affiliates or their respective directors, officers, employees, partners, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) disputes any dispute solely between among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an Agent, L/C Issuer or as a Lead Arranger under any Facility and among such Indemnitees to the extent such disputes do not arise from other than any claims arising out of any act or omission of Holdings, the Parent Borrower Borrowers, the Investors or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeAffiliates). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks Debtdomain, Roadshow Access (if applicable) or other similar information transmission systems in connection with this Agreement, nor nor, to the extent permissible under applicable Law, shall any Indemnitee Indemnitee, Loan Party or any Loan Party Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses in each case subject to the indemnification provisions of this Section 10.05); it being agreed that this sentence shall not limit the indemnification obligations of Holdings, the Borrowers or any Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is are consummated. All amounts due under this Section 10.05 shall be paid within ten thirty (1030) Business Days days after written demand therefortherefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund such the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation or removal of the Administrative Agent or Collateral Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes, except any Taxes that represent liabilities, obligations, losses, damages, etc.penalties, with respect to a claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claimclaims.
Appears in 1 contract
Samples: Credit Agreement (Bumble Inc.)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall jointly and severally indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Issuing Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and their respective Affiliates, directors, officers, employees, counsel, agents, advisorsfrom, and other representatives (collectivelyshall pay or reimburse any such Indemnitee for, the “Indemnitees”) from and against any and all losses, liabilitiesclaims (including, without limitation, any Environmental Claims), penalties, damages, claims, liabilities and related expenses (including the reasonable and documented or invoiced out-of-pocket fees fees, charges and expenses disbursements of counsel, which shall be limited to one U.S. counsel and one Canadian counsel (including reasonable Attorney Costs of in addition to up to one local counsel in each applicable local jurisdiction) for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, solely in the case of an actual or perceived conflict of interest, where one additional counsel in each applicable jurisdiction to the affected Indemnitee affected by such conflict informs the Parent Borrower who have informed you of such conflict and thereafter retains its own such additional counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrowers or any other Credit Party), other than such Indemnitee in any way relating to or and its Related Parties, arising out of or of, in connection with with, or as a result of (ai) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated therebyhereby or thereby (including, without limitation, the Transactions), (bii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer any Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (ciii) any actual or alleged presence or Release or threat of Release release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by the Parent Borrower, any Credit Party or any Subsidiary or any other Loan Partythereof, or any Environmental Liability Claim related in any way to the Parent Borrower, any Subsidiary Credit Party or any other Loan PartySubsidiary, or (div) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including theory, whether brought by a third party or by any investigation ofCredit Party or any Subsidiary thereof, preparation forand regardless of whether any Indemnitee is a party thereto, or defense of (v) any pending or threatened claimclaim (including, without limitation, any Environmental Claims), investigation, litigation or proceeding) other proceeding (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documents contemplated by or arisingreferred to herein or therein or the transactions contemplated hereby or thereby, including without limitation, reasonable attorneys fees (which shall be limited to one U.S. counsel and one Canadian counsel (in whole addition to up to one local counsel in each applicable local jurisdiction) for all Indemnitees and, solely in the case of an actual or perceived conflict of interest, one additional counsel in parteach applicable jurisdiction to the affected Indemnitee who have informed you of such conflict and thereafter retains such additional counsel), out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a by final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates or (z) disputes solely between and among such Indemnitees nonappealable judgment to the extent such disputes do not arise from any act or omission of the Parent Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this This Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (1012.3(b) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply with respect to Taxes other than any Taxes that represent liabilitieslosses, obligations, lossesclaims, damages, etc., with respect to a . arising from any non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Arranger, each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and of their respective AffiliatesRelated Parties and each partner, directorsdirector, officersofficer, employeesemployee, counsel, agentsagent, advisorsrepresentative, trustee and other representatives advisor and attorney-in-fact of the foregoing (collectively, the “Indemnitees”) from and against (and will reimburse each Indemnitee, as and when incurred, for) any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements, and reasonable and documented or invoiced out-of-pocket fees and 177 expenses (including reasonable Attorney Costs the reasonable, documented out-of-pocket fees, disbursements and other charges of (i) one counsel for all to the Administrative Agent and the Security Agent, (ii) one counsel to the other Indemnitees andtaken as a whole, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictionsiii) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates in each relevant jurisdiction material to the Transactioninterests of the Lenders, including and (iv) if necessary, one local counsel in each jurisdiction material to the financing contemplated hereby, interests of the Indemnitees (which may include a single special counsel acting in multiple jurisdictions) and special counsel for each relevant specialty) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (x) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the following, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, thereby or (b) any Commitment, Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemniteetherefrom; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, disbursements, fees or expenses or disbursements are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from (xA) the bad faith, gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons persons or any of the officers, directors, employees, agents, advisors advisors, or members of any of the foregoing, in each case who are involved in or aware (B) a material breach of the Transaction Loan Documents by such Arranger, Agent-Related Person, Lender (or any of their respective Affiliates, partners, directors, officers, employees, counsel, agents and representatives), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision)decision or (C) any dispute that is among Indemnitees (other than any dispute involving claims against the Administrative Agent, any Arranger or any other Agent, in each case in their respective capacities as such) that a court of competent jurisdiction has determined in a final and non-appealable judgment did not involve actions or omissions of any direct or indirect parent or controlling person of Parent or the Borrowers or any of their Subsidiaries; or (y) a material breach any actual or alleged presence or release of the Loan Documents Hazardous Materials at, on, in, under, to or from any property currently or formerly owned or operated by such Indemnitee Parent or one any of its Affiliates Subsidiaries, or any Environmental Liability related in any way to Parent or any of its Subsidiaries, (z(x) disputes solely between and among (y), collectively, the “Indemnified Liabilities”); provided that such Indemnitees indemnity shall not, as to any Indemnitee, be available to the extent that such disputes do not arise liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, disbursements, fees or expenses are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from any act the bad faith, gross negligence or omission willful misconduct of the Parent Borrower such Indemnitee or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger controlling persons or similar role under any of the Loan Documents unless such claim arose from the gross negligenceofficers, bad faith directors, employees, agents, advisors, or willful misconduct of such Indemnitee). No Indemnitee shall be liable for any damages arising from the use by others members of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date)foregoing. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders shareholders or creditors or an Indemnitee or any other Person, and whether or not any Indemnitee is otherwise a party thereto thereto. Should any investigation, litigation or proceeding be settled, or if there is a judgment in any such investigation, litigation or proceeding, the Borrowers shall indemnify and whether hold harmless each Indemnitee in the manner set forth above; provided that the Borrowers shall not be liable for any settlement effected without the Borrowers’ prior written consent (such consent not to be unreasonably withheld, delayed or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummatedconditioned). All amounts due under this Section 10.05 shall be paid payable within ten (10) Business Days 30 days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this This Section 10.05 shall not apply with respect to Taxes Taxes, other than any Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a claims or damages arising from any non-Tax claim. None of the Arrangers, Agent-Related Persons, Lenders, or their respective Related Parties or any partner, director, officer, employee, counsel, agent, representative, trustee, advisor or attorney-in-fact of the foregoing (collectively, the “Exculpated Persons”) shall be liable for any damages arising from the use by others of any information or other materials obtained through the Platform or other information transmission systems (including electronic telecommunications) in connection with this Agreement or any other Loan Document unless determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Exculpated Person, nor shall any Exculpated Person or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan 178 Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that such waiver of special, punitive, indirect or consequential damages shall not limit the indemnification obligations of the Loan Parties under this Section 10.05 and provided further that nothing contained in this paragraph will limit the indemnification obligations of the Loan Parties under this Section 10.05 to the extent such indirect, special, punitive or consequential damages are included in any third party claim with respect to which the applicable Exculpated Person is entitled to indemnification under this Section 10.05.
Appears in 1 contract
Samples: Credit Agreement (Oatly Group AB)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent any Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit)therefrom, or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or, to the extent caused by any Borrower, any other Loan Party or any of their respective Subsidiaries, formerly owned owned, leased or operated by the Parent any Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or any Environmental Liability related in of any way to the Parent Borrower, any Subsidiary other Loan Party or any other Loan Partyof their respective Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower Borrowers or any of its their Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeIndemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee Agent-Related Person shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee Agent-Related Person or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such if the Borrowers have reimbursed any Indemnitee shall promptly refund such amount to the extent that for any legal or other expenses in connection with any Indemnified Liabilities and there is a final judicial or arbitral determination non-appealable judgment of a court of competent jurisdiction that such the Indemnitee was not entitled to indemnification or contribution rights with respect to such payment Indemnified Liabilities pursuant to the express terms of this Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Term Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and each Co-Manager and each of their respective Affiliates, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Lead Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrowerany Company, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, in, under or from any property currently or formerly owned owned, leased or operated by the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its respective Subsidiaries, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary Loan Party or any other Loan Partyof its respective Subsidiaries, or (d) 156 any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its controlled Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Parent Borrower any Company or any of its their respective Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Agent, Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such IndemniteeDocuments). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (without limitation of any Loan Party’s indemnification obligations hereunder). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Yum Brands Inc)
Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the The Borrowers shall indemnify and hold harmless each Arranger, each Agent-Related Person, each Lender, each Lead Arranger, the Syndication Agent, each Documentation Agent and of their respective AffiliatesRelated Parties and each partner, directorsdirector, officersofficer, employeesemployee, counsel, agentsagent, advisorsrepresentative, trustee and other representatives advisor and attorney-in-fact of the foregoing 183 IF "1" = "1" "#4875-2924-7575v15" "" #4875-2924-7575v15 AMERICAS 120585256 (collectively, the “Indemnitees”) from and against (and will reimburse each Indemnitee, as and when incurred, for) any and all liabilities, obligations, losses, liabilities, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs the reasonable, documented out-of-pocket fees, disbursements and other charges of (i) one counsel for all to the Administrative Agent and the Security Agent, (ii) one counsel to the other Indemnitees andtaken as a whole, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictionsiii) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Parent Borrower Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Parent Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates in each relevant jurisdiction material to the Transactioninterests of the Lenders, including and (iv) if necessary, one local counsel in each jurisdiction material to the financing contemplated hereby, interests of the Indemnitees (which may include a single special counsel acting in multiple jurisdictions) and special counsel for each relevant specialty) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (x) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the following, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, thereby or (b) any Commitment, Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Parent Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Parent Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemniteetherefrom; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, disbursements, fees or expenses or disbursements are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from (xA) the bad faith, gross negligence, bad faith negligence or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons persons or any of the officers, directors, employees, agents, advisors advisors, or members of any of the foregoing, in each case who are involved in or aware (B) a material breach of the Transaction Loan Documents by such Arranger, Agent-Related Person, Lender (or any of their respective Affiliates, partners, directors, officers, employees, counsel, agents and representatives), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision)decision or (C) any dispute that is among Indemnitees (other than any dispute involving claims against the Administrative Agent, any Arranger or any other Agent, in each case in their respective capacities as such) that a court of competent jurisdiction has determined in a final and non-appealable judgment did not involve actions or omissions of any direct or indirect parent or controlling person of Parent or the Borrowers or any of their Subsidiaries; or (y) a material breach any actual or alleged presence or release of the Loan Documents Hazardous Materials at, on, in, under, to or from any property currently or formerly owned or operated by such Indemnitee Parent or one any of its Affiliates Subsidiaries, or any Environmental Liability related in any way to Parent or any of its Subsidiaries, (z(x) disputes solely between and among (y), collectively, the “Indemnified Liabilities”); provided that such Indemnitees indemnity shall not, as to any Indemnitee, be available to the extent that such disputes do not arise liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, disbursements, fees or expenses are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from any act the bad faith, gross negligence or omission willful misconduct of the Parent Borrower such Indemnitee or any of its Affiliates or controlling persons or any of the officers, directors, employees, agents, advisors, or members of any of the foregoing. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or an Indemnitee or any other Person, and whether or not any Indemnitee is otherwise a party thereto. Should any investigation, litigation or proceeding be settled, or if there is a judgment in any such investigation, litigation or proceeding, the Borrowers shall indemnify and hold harmless each Indemnitee in the manner set forth above; provided that the Borrowers shall not be liable for any settlement effected without the Borrowers’ prior written consent (such consent not to be unreasonably withheld, delayed or conditioned). All amounts due under this Section 10.05 shall be payable within 30 days after demand therefor. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other than Obligations. This Section 10.05 shall not apply with respect to a claim against an Indemnitee acting in its capacity as an Agent Taxes, other than any Taxes that represent losses, claims or Lead Arranger damages arising from any non-Tax claim. None of the Arrangers, Agent-Related Persons, Lenders, or similar role under their respective Related Parties or any partner, director, officer, employee, counsel, agent, representative, trustee, advisor or attorney-in-fact of the Loan Documents unless such claim arose from foregoing (collectively, the gross negligence, bad faith or willful misconduct of such Indemnitee). No Indemnitee “Exculpated Persons”) shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks the Platform or other similar information transmission systems (including 184 IF "1" = "1" "#4875-2924-7575v15" "" #4875-2924-7575v15 AMERICAS 120585256 electronic telecommunications) in connection with this AgreementAgreement or any other Loan Document unless determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Exculpated Person, nor shall any Indemnitee Exculpated Person or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In ; provided that such waiver of special, punitive, indirect or consequential damages shall not limit the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any indemnification obligations of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due Parties under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, and provided further that such Indemnitee shall promptly refund such amount nothing contained in this paragraph will limit the indemnification obligations of the Loan Parties under this Section 10.05 to the extent that there such indirect, special, punitive or consequential damages are included in any third party claim with respect to which the applicable Exculpated Person is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of under this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Appears in 1 contract
Samples: Credit Agreement (Oatly Group AB)
