Indemnities. (a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower. (b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including: (i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person; (ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group; (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; (iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person; (v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security; (vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or (vii) any insolvency or similar proceedings. (c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 4 contracts
Sources: Syndicated Loan Agreement (Hillenbrand, Inc.), Syndicated L/G Facility Agreement (Hillenbrand, Inc.), Syndicated Loan Agreement (Hillenbrand, Inc.)
Indemnities. (a) Each Group and the Borrower agree, jointly and severally, to indemnify and hold harmless each Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representative, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Secured Obligation, any Letter of Credit or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of any of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower shall immediately on demand indemnify not have any obligation under this Section 11.4 (i) to an Issuing Bank against Indemnitee with respect to any cost, loss Indemnified Matter caused by or liability incurred by that Issuing Bank (otherwise than by reason resulting from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16, and (iii) to an Indemnitee with respect to any Indemnified Matter that does not involve an act or omission of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of any Warnaco Entity involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning any Warnaco Entity; (iii) any costs or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Warnaco Entity, or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent incurred following (A) foreclosure by any Facility Agent, any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer having become the successor in interest to any Warnaco Entity, and (B) attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Facility Agents or such Lender.
(b) The obligations Group and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each Agent, each Arranger, each Lender and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, Arranger, Lender or any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under Warnaco Entity in connection with the transactions contemplated by this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither Group and the Company nor Borrower agree, jointly and severally, that any Borrower shall be entitled indemnification or other protection provided to reject payment otherwise due by it any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Secured Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 4 contracts
Sources: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Indemnities. (a) Each Borrower The Company agrees to, and shall immediately on demand cause each other Loan Party to, indemnify and hold harmless each Agent, each Arranger, each Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article IX) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Payment Obligation, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Company shall not have any liability under this Section 14.17 to an Indemnitee with respect to any Indemnified Matter to the extent such liability has resulted from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder; provided, further, that the Company shall not be required to reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agent and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Collateral Agent, at the direction of the Administrative Agent, any Lender, or any Agent or any Lender having become the successor in interest to the Company or any of its Subsidiaries and (y) to the extent attributable to acts of the Agents, such Lender or any agent on behalf of) that Borrowerof such Agent or such Lender.
(b) The obligations Company shall, and shall cause each other Loan Party to, indemnify the Agents and the Lenders for, and hold the Agents and the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents and the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company nor any Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and lead such defense, and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense; provided, however, that the fees and expenses of such counsel shall be entitled reasonable for a secondary counsel; provided, further, that the Company shall not be required to reject payment otherwise due reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agent and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Company’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 14.17) or any other Loan Document shall (i) survive Full Satisfaction of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Payment Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 4 contracts
Sources: Term Loan Agreement (Revlon Consumer Products Corp), Term Loan Agreement (Revlon Consumer Products Corp), Term Loan Agreement (Revlon Consumer Products Corp)
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless each Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representative, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Secured Obligation, any Letter of Credit or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of any of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not have any obligation under this Section 11.4 (i) to an Issuing Bank against Indemnitee with respect to any cost, loss Indemnified Matter caused by or liability incurred by that Issuing Bank (otherwise than by reason resulting from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16, and (iii) to an Indemnitee with respect to any Indemnified Matter that does not involve an act or omission of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of any Warnaco Entity involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning any Warnaco Entity; (iii) any costs or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including CERCLA and applicable property transfer laws, whether, with respect to any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Warnaco Entity, or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent incurred following (A) foreclosure by any Facility Agent, any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer having become the successor in interest to any Warnaco Entity, and (B) attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Facility Agents or such Lender.
(b) The obligations Borrower shall indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each Agent, each Arranger, each Lender and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, Arranger, Lender or any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under Warnaco Entity in connection with the transactions contemplated by this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither the Company nor The Borrower agrees that any Borrower shall be entitled indemnification or other protection provided to reject payment otherwise due by it any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Secured Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 4 contracts
Sources: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Indemnities. Whether or not the transactions contemplated hereby shall be consummated, the Obligors agree to defend, indemnify, pay and hold harmless the Loan Agent, the Lenders, and their respective Affiliates, officers, directors, employees, agents and controlling Persons (acollectively called the "Indemnitees") Each Borrower shall immediately on demand indemnify an Issuing Bank from and against any costand all liabilities, loss obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or liability incurred by that Issuing Bank nature whatsoever (otherwise than by reason including without limitation the reasonable fees and disbursements of that Issuing Bank's gross negligenceoutside counsel for such Indemnitees, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofbut excluding Taxes) that Borrower.
(b) The obligations of any Borrower under this Clause will not may be affected by any actimposed on, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted toincurred by, or composition withasserted against any such Indemnitee, in any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms manner arising out of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including, without limitation, the use or intended use of the proceeds of the Loan) or any breach or default by the Borrowers of any provision of the Loan Documents (collectively called the "Indemnified Liabilities"); provided that the Obligors shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities (i) arise from the gross negligence or willful misconduct of an Indemnitee, (ii) are specifically addressed elsewhere in this Agreement (including, without limitation, Section 2.10, (iii) arise from breaches by an Indemnitee of any Loan Document to which it is a party, or (iv) constitute ordinary and usual operating or overhead expenses of an Indemnitee (excluding, without limitation, costs and expenses of any outside counsel, consultant or agent). To the extent that the undertaking to defend, indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Obligors 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 regulationsany of them.
Appears in 4 contracts
Sources: Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc)
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless each Agent, each Arranger, Lender, Issuer (including each Person obligated on a Hedging Contract that is a Loan Document if such Person was a Lender or Issuer at the time of it entered into such Hedging Contract) and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions to Loans and Letters of Credit) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by the Borrower or any of its Subsidiaries or any such Indemnitee or any of their respective directors, security holders or creditors or the Borrower or any such Subsidiary, Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, any Disclosure Document, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not have any liability under this Section 11.4 to an Issuing Bank Indemnitee (i) with respect to any Indemnified Matter that has resulted primarily from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (ii) with respect to a dispute among Indemnitee (other than a claim against any costAgent or its affiliates solely in its capacity as Agent, loss except to the extent such claim is found by a final non-appealable judgment of a court of competent jurisdiction to have resulted primarily from the gross negligence or liability willful misconduct of such Lead Arranger or affiliate, as applicable); or (iii) arising from a material breach of the obligations of an Indemnitee under this Agreement as determined by a final, non-appealable judgment of a court of competent jurisdiction. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or migrating from such property, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien on Real Property or any asset owned or leased by that Issuing Bank the Borrower or any of its Subsidiaries and (otherwise than by reason iv) any costs or liabilities concerning the Borrower or any of that Issuing Bank's gross negligenceits Subsidiaries, bad faith including their operations and owned or wilful misconduct) leased Real Property, incurred in acting as an Issuing Bank connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by any Agent, any Lender or any Issuer, or any Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries and (y) to the extent attributable solely to acts or omissions of any Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof such Agent, such Lender or such Issuer or any other Indemnitee.
(b) The obligations Borrower shall indemnify each Agent, each Arranger, Lender and Issuer for, and hold such Agent, Arranger, Lender and Issuer and harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Arrangers, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 4 contracts
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.), Credit Agreement (Amc Entertainment Inc), Credit Agreement (Amc Entertainment Holdings, Inc.)
Indemnities. (a) Each Borrower Lessee will pay, and hereby indemnifies, on an after-tax basis, Lessor and its assignees, if any, from and against, any and all fees and taxes, levies, imposts, duties, charges or withholdings, together with any penalties, fines or interest thereon (any of the foregoing for the purposes of this Section 12 being called a "Tax"), which may from time to time be imposed on or asserted against Lessor and its assignees, if any, or the Airframe or any Engine or Spare Engine or any part thereof or interest therein by any Federal, state or local government or other taxing authority in the United States or by any foreign government or subdivision thereof or by any foreign taxing authority in connection with, relating to or resulting from: (i) the Airframe or any Engine or Spare Engine or any part thereof of interest therein; (ii) the manufacture, purchase, ownership, mortgaging, lease, sublease, use, storage, maintenance, sale or other disposition of the Airframe or any Engine or Spare Engine; (iii) any rentals or other earnings therefor or arising therefrom or the income or other proceeds received with respect thereto; or (iv) this Lease or the Aircraft Chattel Mortgage; provided, however, that, there shall immediately be excluded from any indemnification under this Section 12(a) any Lessor Tax unless the payment of any such Tax shall be a condition to the enforceability of the Aircraft Chattel Mortgage or the perfection of the lien thereof or unless proceedings shall have been commenced to foreclose any lien which may have attached as security for such Tax, nothing in this Section shall require the payment of any Tax so long as and to the extent that the validity thereof shall be contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and Lessee shall have set aside on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) its books adequate reserves with respect thereto in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borroweraccordance with generally accepted accounting principles.
(b) The obligations Lessee agrees to defend, indemnify, pay and hold harmless Lessor, Agent and each Lender, and the officers, directors, partners, employees, agents and affiliates of Lessor, Agent and each Lender, (collectively called the "Indemnitees") from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any Borrower under this Clause will not be affected kind or nature whatsoever (including without limitation the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding, commenced or threatened by any actPerson, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it any such Indemnitee shall be designated as a party or a potential party thereto), whether direct, indirect or consequential and whether based on any other person) including:
federal, state or foreign laws, statutes, rules or regulations (i) any timeincluding without limitation securities and commercial laws, waiver statutes, rules or consent granted toregulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or composition withasserted against any such Indemnitee, in any Obligor, any beneficiary under an L/G manner relating to or any arising out of this Lease or the other person;
Transaction Documents or the transactions contemplated hereby or thereby (ii) including without limitation Lenders' agreement to make the release Loans to Lessor or the use or intended use of the proceeds of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
Loans) (iii) collectively called the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of "Indemnified Liabilities"); provided that Lessee shall not have any obligation of to any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G Indemnitee hereunder with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant any Indemnified Liabilities to the terms extent such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of this Agreement that Indemnitee as determined by a final judgment of a court of competent jurisdiction. To the extent that the undertaking to defend, indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Lessee 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 regulationsany of them.
Appears in 4 contracts
Sources: Lease Agreement (Atlas Air Inc), Lease Agreement (Atlas Air Inc), Lease Agreement (Atlas Air Inc)
Indemnities. (a) Each Borrower Whether or not any of the transactions contemplated hereby are consummated, the Sellers shall immediately indemnify, protect, defend and hold harmless the Buyers and their respective officers, directors, agents and employees (collectively, the “Indemnitees”) throughout the Pre-Delivery Period from, against and in respect of, any and all liabilities, obligations, losses, damages, penalties, fines, taxes (save for any taxes levied on demand indemnify an Issuing Bank the Buyers by competent tax authorities in their domicile and by reference to the overall income or assets in general of the Buyers), fees (including but not limited to any vessel registration, tonnage, reasonable legal fees, any fees incurred or to be incurred in registering and maintaining the Buyers as a foreign maritime entity with any registry of ships), claims, actions, proceedings, judgement, order or other sanction, lien, salvage, general average, suits, costs, expenses and disbursements, including reasonable legal fees and expenses, of whatsoever kind and nature (collectively, the “Expenses”) imposed on, suffered or incurred by or asserted against any costIndemnitee, loss in any way relating to, resulting from or liability incurred by that Issuing Bank (otherwise than by reason arising out of that Issuing Bank's gross negligenceor in connection with, bad faith in each case, directly or wilful misconduct) in acting as an Issuing Bank under indirectly, any L/G requested by (one or on behalf of) that Borrower.
(b) The obligations more of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) includingthe following:
(i) any timethe delivery (including the Vessel not being delivered on the Scheduled Delivery Date after the Sellers have informed the Buyers of the Scheduled Delivery Date), waiver or consent granted registration and purchase of the Vessel by the Buyers whether prior to, during or composition with, after termination of this Agreement and whether or not the Vessel is in the possession or the control of the Sellers or otherwise in relation to any Obligor, any beneficiary non-delivery to or acceptance by the Sellers (as bareboat charterers) of the Vessel under an L/G or any other personthe Charter;
(ii) the release any breach of any other Obligor or failure to perform or observe, or any other person non-compliance with, any covenant or agreement or other obligation to be performed by the Sellers under any Transaction Document to which they are a party or the terms falsity of any composition representation or arrangement with any creditor or any member warranty of the GroupSellers in any Transaction Document to which they are a party or the occurrence of any MOA Termination Event;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect a failure by an Obligor to perfect, take up or enforce, pay any rights against, or security over assets of, any Obligor, any beneficiary amount due under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;a Transaction Document on its due date; or
(iv) any incapacity funding, or lack of powermaking arrangements to fund, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented amount required to be paid by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity Buyers pursuant to a Payment Notice but not made by reason of the operation of any obligation of any person under any Finance Document, any L/G one or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis more of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms provisions of this Agreement (other than by reason of default or applicable law or regulationsnegligence of the Buyers).
Appears in 4 contracts
Sources: Memorandum of Agreement (Himalaya Shipping Ltd.), Memorandum of Agreement (Himalaya Shipping Ltd.), Memorandum of Agreement (Himalaya Shipping Ltd.)
Indemnities. 21.2.1 Subject to the Applicable Laws, you agree to continuously indemnify, defend, and hold us (and our employees, contractors and agents) harmless, and keep us indemnified on demand, in respect of all Losses, taxes, interests arising out of any nature and on any account and liabilities present, future, contingent orotherwise and including legal fees and administrative costs on a full indemnity basis which may be suffered or incurred or brought against us or in connection withor caused by:
(a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any costactual or alleged breach of your representations, loss warranties or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank obligations under any L/G requested by (or on behalf of) that Borrower.the Agreement;
(b) The obligations your wrongful or improper use of the Services and/or the Products;
(c) us entering into any Positions with you;
(d) us taking any action under clause 18 of this Client Agreement;
(e) any representation or warranty given by you being incorrect, misleading or untrue, or any error in any order or instruction which is, or appears to be, from an Authorised Person, unless and to the extent only such is suffered or incurred as a result of our gross negligence or wilful default.
21.2.2 To the extent permitted by law, you will indemnify, protect and hold us harmless from and against all Loss, suits, actions, proceedings or claims resulting from or arising out of any Borrower under this Clause will not be affected act or omission by any actperson obtaining access to your Account whether or not you authorised such access.
21.2.3 To the fullest extent permitted by law, you release, discharge and indemnify and agree to keep Fortune Prime Global and its respective officers, employees, agents and representatives indemnified from and against all claims arising out of:
(a) any default, whether by your act or omission under the Agreement or any Order or Contract;
(b) any breach by you of any Applicable Laws;
(c) any representation or warranty made or given by you under the Agreement proving to be untrue or incorrect;
(d) any error, omission, matter fraud, malfeasance, negligence, misappropriation or thing which, but for this Clause, would reduce, release criminal act or prejudice omission by you or by any of its obligations under this Clause your clients, employees, agents or Authorised Persons, consultants or servants;
(without limitation e) any failure of any of your computer or electronic systems or networks to perform, be available or successfully transmit data to Fortune Prime Global, or anyerror or inadequacy in the data or information input into such systems ornetworks by you;
(f) any delays in processing any Order including, for example (but not limited to), as a result of systems or market delays, or due to verification or filtering procedures or unauthorised processes, email delays or due to telephone call waiting time or adherence to internal policies and whether procedures;
(g) anything lawfully done by us in accordance with, pursuant or not known incidental to it the Agreement;
(h) any instruction, request or any other person) including:direction given by you;
(i) by reason of Fortune Prime Global complying with any timedirection, waiver request or consent granted to, requirement of any Applicable Laws or composition withany Underlying Market, any Obligor, any beneficiary under an L/G government body or any other person;
(ii) the release of any other Obligor regulatory body having jurisdiction over Fortune Prime Global or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or securityhedge counterparty; or
(viij) arising from and in connection with or in any insolvency way related to Fortune Prime Global ingood faith accepting and acting on instructions received by facsimile transmission, email or similar proceedingsby other means of any kind which are signed by orpurported to be signed by you or any Authorised Persons.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 3 contracts
Sources: Client Agreement, Client Agreement, Client Agreement
Indemnities. (a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations In the event of any Borrower under registration of Registrable Shares pursuant to this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) includingSection 5.3:
(i) Puyi will indemnify and hold harmless, to the fullest extent permitted by law, any timeFanhua Party and any underwriter for such Fanhua Party, waiver and each person, if any, who controls the Fanhua Party or consent granted tosuch underwriter, from and against any and all losses, damages, claims, liabilities, joint or several, costs and expenses (including any amounts paid in any settlement effected with Puyi’s reasonable consent) to which the Fanhua Party or any such underwriter or controlling person may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or composition with(ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading, or (iii) a violation of applicable securities laws by ▇▇▇▇, and ▇▇▇▇ will reimburse the Fanhua Party, such underwriter and each such controlling person of the Fanhua Party or the underwriter, promptly upon demand, for any Obligor, any beneficiary under an L/G reasonable legal or any other person;expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that Puyi will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by a Fanhua Party, such underwriter or such controlling persons specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this Section 5.3(d)(i) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of Puyi, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the selling shareholder, the underwriter or any controlling person of the selling shareholder or the underwriter, and regardless of any sale in connection with such offering by the selling shareholder. Such indemnity shall survive the transfer of securities by a selling shareholder.
(ii) Each Fanhua Party participating in a registration hereunder will indemnify and hold harmless Puyi, each other Fanhua Party participating in such registration, any underwriter for Puyi, and each person, if any, who controls Puyi or such underwriter or such other Fanhua Party, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the release selling shareholder’s reasonable consent) to which Puyi or any such controlling person and/or any such underwriter and/or such other Fanhua Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on (i) any untrue or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and each such Fanhua Party will reimburse Puyi, each other Obligor Fanhua Party participating in such registration, any underwriter and each such controlling person of Puyi or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Fanhua Party specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement) or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective or in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) Puyi and (ii) any underwriter, if a copy of the final prospectus was not furnished to the person under or entity asserting the terms loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; provided, further, that the indemnity agreement contained in this Section 5.3(d)(ii) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or arrangement with any creditor or any member action if such settlement is effected without the consent of such Fanhua Party, as the Group;case may be, which consent shall not be unreasonably withheld. In no event shall the liability of a Fanhua Party exceed the net proceeds from the offering received by such Fanhua Party.
(iii) Promptly after receipt by an indemnified party pursuant to the takingprovisions of Sections 5.3(d)(ii) or 5.3(d)(ii) of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, variationsuch indemnified party will, compromiseif a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Sections 5.3(d)(ii) or 5.3(d)(ii), exchangepromptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, renewal the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party and the indemnifying party and there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or release ofparties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 5.3(d)(ii) or 5.3(d)(ii) for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within 15 days after the notice of the commencement of the action, or refusal or neglect (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of any instrument to such claim or any failure to realise the full value of any security;litigation.
(iv) If recovery is not available under the foregoing indemnification provisions, for any incapacity or lack of powerreason other than as specified therein, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented parties entitled to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses. In determining the basis amount of contribution to which the argument that an L/G respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms the circumstances. In no event shall the liability of a Fanhua Party exceed the net proceeds from the offering received by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationssuch Fanhua Party.
Appears in 3 contracts
Sources: Securities Exchange Agreement (Hu Yinan), Securities Exchange Agreement (Fanhua Inc.), Securities Exchange Agreement (Puyi, Inc.)
Indemnities. (a) Each Borrower The Borrowers shall immediately on demand indemnify an the Administrative Agent, the Collateral Agent, the Lead Arranger, the Documentation Agent, the Syndication Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, on an after-Tax basis, any and all losses, claims, damages, penalties, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any costIndemnitee arising out of, loss in connection with, or liability incurred as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by that Issuing Bank (otherwise than by reason the parties hereto of that Issuing Bank's gross negligence, bad faith their respective obligations thereunder or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations the consummation of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it the Transactions or any other person) including:
(i) any timetransactions contemplated hereby, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) any Loan or Letter of Credit or the release use of the proceeds therefrom (including any other Obligor or any other person refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of any composition or arrangement with any creditor or any member such Letter of the Group;
Credit), (iii) the takinghandling of the Funding Accounts, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforceCollection Account, any rights againstaccount subject to a Blocked Account Agreement and Collateral of Borrowers as herein provided, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) the Agent, Issuing Bank or Lender relying on any incapacity or lack instructions of powerthe Administrative Borrower, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) actual or replacement alleged presence or release of a Finance Document consented to Hazardous Materials on or from any property owned or operated by the Company, any L/G Borrowers or any other document of their Subsidiaries, or security;
any Environmental Liability related in any way to the Borrowers or any of their Subsidiaries, or (vi) any unenforceabilityactual or prospective claim, illegality litigation, investigation or invalidity proceeding relating to any of any obligation of any person under any Finance Documentthe foregoing, any L/G whether based on contract, tort or any other document theory and regardless of whether any Indemnitee or securityany Loan Party is a party thereto; or
(vii) provided that such indemnity shall not, as to any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall Indemnitee, be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant available to the terms extent that such losses, claims, damages, penalties, liabilities or related expenses are finally determined by a court of this Agreement competent jurisdiction to have resulted from the gross negligence or applicable law willful misconduct of such Indemnitee in a final nonappealable order or regulationsjudgment.
Appears in 3 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Indemnities. (a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's ’s gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 3 contracts
Sources: Syndicated L/G Facility Agreement (Hillenbrand, Inc.), Amendment Agreement (Hillenbrand, Inc.), Syndicated Loan Agreement (Hillenbrand, Inc.)
Indemnities. (a) Each The Borrower shall immediately on demand indemnify an Issuing Bank and hold harmless the Administrative Agent, each Lender, each Issuer, the Arrangers and their respective Affiliates, directors, officers, employees, agents, partners, trustees or advisors and other representatives (collectively the “Indemnitees”) from and against any costand all liabilities, loss obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or liability 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 (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant jurisdiction that Issuing Bank is material to the interest of such Indemnitees, and solely in the case of a conflict of interest between Indemnitees (otherwise than where the Indemnitee affected by reason such conflict has informed the Borrower of such conflict), one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) (i) 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 (including, without limitation, the reliance in good faith by any Indemnitee on any notice purportedly given by or on behalf of the Borrower), (ii) the Transaction, (iii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an 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), (iv) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Liabilities arising out of the activities or operations of the Borrower, any Subsidiary or any other Loan Party, or (v) 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”); provided that Issuing Bank's 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 (A) resulted from (x) the gross negligence, bad faith or wilful misconductwillful misconduct of such Indemnitee or of any Related Indemnified Person of such Indemnitee as determined by a final, non-appealable judgment of a court of competent jurisdiction or (y) a material breach of any obligations under any Loan Document by such Indemnitee or of any Related Indemnified Person of such Indemnitee, in acting each case as determined by a final, non appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an Issuing Bank administrative agent, collateral agent, co-collateral agent, arranger, bookrunner or any similar role under the Facilities and other than any L/G requested by (or on behalf of) that Borrower.
(b) The obligations claims arising out of any act or omission of the Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations Affiliates or (B) have been settled pursuant to any settlement arrangement entered into by the applicable Indemnitee or any Related Indemnified Persons of such Indemnitee, in each case, without the Borrower’s prior written consent (such consent not to be unreasonably withheld or delayed). To the extent that the undertakings to indemnify and hold harmless set forth in this Section 12.4 may be unenforceable in whole or in part because they are violative of any applicable law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. 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 Clause 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 (without limitation whether before or after the 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). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 12.4 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 12.4 (iii) after the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement determination of a Finance Document consented to by the Companycourt of competent jurisdiction, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank if required pursuant to the terms of this Agreement Section 12.4), shall be paid within twenty (20) Business Days after written demand therefor. The agreements in this Section 12.4 shall survive the resignation of the Administrative Agent, the Swing Loan Lender or applicable law any Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or regulationsdischarge of all the other Obligations. This Section 12.4 shall not apply to Taxes, Other Taxes, taxes covered by Section 3.4 or amounts excluded from the definition of Taxes pursuant to clauses (i) through (vii) of the first sentence of Section 3.1(a), which shall be governed by Section 3.1 or Section 3.4, except it shall apply to any taxes (other than taxes imposed on or measured by net income (however denominated, and including branch profits and similar taxes), and franchise or similar taxes) that represent losses, claims, damages, etc. arising from a non-tax claim (including a value added tax or similar tax charged with respect to the supply of legal or other services).
Appears in 3 contracts
Sources: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Indemnities. The Borrowers shall indemnify and hold harmless the Agents, each Lender, each Issuer, the Arrangers and their respective Affiliates and their, and their Affiliates’, branches, directors, officers, employees, agents, partners, trustees or advisors and other representatives (acollectively the “Indemnitees”) Each Borrower shall immediately on demand indemnify an Issuing Bank from and against any costand all liabilities, loss obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, reasonable and documented out-of-pocket expenses and disbursements of any kind or liability 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 (but, in the case of Attorney Costs, limited to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant jurisdiction, and in the case of an actual or potential conflict of interest between Indemnitees (where the Indemnitee(s) affected by such conflict of interest informs the Borrowers in writing of such conflict of interest), one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) (i) 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, (ii) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an 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 (iii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrowers, any Subsidiary or any other Loan Party, or any Environmental Liabilities arising out of the activities or operations of the Borrowers, any Subsidiary or any other Loan Party, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (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”); provided that Issuing Bank 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 (otherwise than by reason of that Issuing Bank's x) the gross negligence, bad faith or wilful misconductwillful misconduct of such Indemnitee or of any affiliate, director, officer, employee or agent of such Indemnitee, (y) a material breach of any obligations under any Loan Document by such Indemnitee or of any Related Indemnified Person, in acting each case of clauses (x) and (y), as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (z) any dispute solely among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an Issuing Bank administrative agent, collateral agent, issuer of Letters of Credit, or arranger or any similar role under the Facilities and other than any L/G requested by (or on behalf of) that Borrower.
(b) The obligations claims arising out of any Borrower act or omission of Holdings, the Borrowers or any of their Affiliates. To the extent that the undertakings to indemnify and hold harmless set forth in this Section 12.4 may be unenforceable in whole or in part because they are violative of any applicable Law or public policy, the Borrowers shall contribute the maximum portion that it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. 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 Clause will Agreement (other than damages arising from the gross negligence, bad faith or willful misconduct of such Indemnitee or of any affiliate, director, officer, employee or agent of such Indemnitee as determined by a final, non-appealable judgment of a court of competent jurisdiction), 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). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 12.4 applies, such indemnity shall be effective whether or not be affected such investigation, litigation or proceeding is brought by any actLoan Party, omissionits directors, matter stockholders or thing whichcreditors or an Indemnitee or any other Person, but for this Clause, would reduce, release whether or prejudice not any of its obligations under this Clause (without limitation Indemnitee is otherwise a party thereto and whether or not known any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 12.4 shall be paid within thirty (30) days after written demand therefor ;provided, however, that such Indemnitee shall promptly refund such amount to it the extent that there is a final non-appealable order of a court of competent jurisdiction that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 12.4. The agreements in this Section 12.4 shall survive the resignation of the Administrative Agent, the Collateral Agent, the Swing Loan Lender or any other person) including:
(i) any timeIssuer, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release replacement of any other Obligor or any other person under Lender, the terms of any composition or arrangement with any creditor or any member termination of the Group;
(iii) Commitments and the takingrepayment, variationsatisfaction or discharge of all the other Obligations. Without limiting the provisions of Sections 3.1 and 3.2, compromisethis Section 12.4 shall not apply with respect to Taxes other than any Taxes that represent losses, exchangeclaims, renewal or release ofdamages, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or etc. arising from any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsTax claim.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 3 contracts
Sources: Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD)
Indemnities. (a) Each Lender hereby agrees to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and expenses (including, without limitation, any losses relating to Borrower’s market activities as a consequence of becoming, or liability of the risk of becoming, subject to Section 16(b) of the Exchange Act, including, without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender of that Issuing Bank's gross negligence, bad faith any of its representations or wilful misconductwarranties contained in Section 7 or (ii) any breach by Lender of any of its covenants or agreements in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement agreements in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthis Agreement.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 12 (each an “Indemnifying Party”) shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 12. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by it pursuant to this Agreement on participate in and, if (i) in the basis judgment of the argument Indemnified Party such claim can properly be resolved by money damages alone and the Indemnifying Party has the financial resources to pay such damages and (ii) the Indemnifying Party admits that an L/G with respect this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to which an Issuing Bank claims payment should not have been issued or should not have been issued under direct the defense of any claim at its terms expense, but such defense shall be conducted by that Issuing Bank pursuant legal counsel reasonably satisfactory to the terms Indemnified Party. An Indemnified Party shall not make any settlement of any claim or litigation under this Agreement or applicable law or regulationsSection 12 without the written consent of the Indemnifying Party.
Appears in 3 contracts
Sources: Share Lending Agreement, Share Lending Agreement (Globalstar, Inc.), Share Lending Agreement (Flotek Industries Inc/Cn/)
Indemnities. (a) Each Lender and Ship Finance hereby agree, jointly and severally, to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and expenses (and, in the event Ship Finance is no longer a Foreign Private Issuer, losses relating to Borrower's market activities as a consequence of becoming, or liability of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith or with respect to this Agreement) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender or Ship Finance of any of its representations or warranties contained in Section 7, (ii) any breach by Lender or Ship Finance of any of its covenants or agreements in this Agreement, in each case under (i) and (ii) above, to the extent that Issuing Bank's gross negligenceit has been finally adjudicated by a court of competent jurisdiction, bad faith evidenced by a final non-appealable order, that Borrower is liable to the Lender with respect to such claims, or wilful misconduct(iii) in acting as an Issuing Bank any Taxes relating to any payments made or to be made by Borrower or any of its affiliates to Ship Finance, Lender, or any of their respective subsidiaries or affiliates under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and Ship Finance and their affiliates and their former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under agreements in this Agreement, in each case to the terms extent that it has been finally adjudicated by a court of any composition or arrangement with any creditor or any member of the Group;
(iii) the takingcompetent jurisdiction, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any evidenced by a final non-presentation or non-observance of any formality or other requirement in appealable order, that Borrower is liable to the Lender with respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch claims.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 12 (each an "Indemnifying Party") shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the "Indemnified Party"), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 12. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by participate in the defense of any claim and, to the extent that it pursuant shall wish, jointly with any other Indemnifying Party similarly notified, to this Agreement on assume the basis defense thereof (unless the Indemnified Party reasonably objects to such assumption), with counsel reasonably satisfactory to such Indemnified Party (who shall not, except with the consent of the argument that an L/G Indemnified Party, be counsel to the Indemnifying Party), and, after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (regardless of whether the indemnified party is an actual or potential party to which such action or claim) unless such settlement, compromise or judgment (i) includes an Issuing Bank claims payment should unconditional release of the Indemnified Party from all liability arising out of such action or claim and (ii) does not have been issued include a statement as to or should an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Party. An Indemnified Party shall not have been issued make any settlement of any claim or litigation under its terms by that Issuing Bank pursuant to this Section 12 without the terms written consent of this Agreement or applicable law or regulationsthe Indemnifying Party.
Appears in 3 contracts
Sources: Share Lending Agreement (Ship Finance International LTD), Share Lending Agreement (Ship Finance International LTD), Share Lending Agreement (Ship Finance International LTD)
Indemnities. (a) Each The Borrower shall immediately on demand indemnify agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender, each L/C Issuer, each Person (other than the Borrower) party to a Secured Hedging Agreement, each Person that each L/C Issuer causes to Issue Letters of Credit hereunder and each of their respective Related Persons (each such Person being an Issuing Bank “Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Disclosure Document, any Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, or any securities filing of, or with respect to, any Group Member, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofof any Group Member or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of Securities or creditors (and including reasonable attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that Borrowerthe Borrower shall not have any liability under this Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, the Borrower waives and agrees not to assert against any Indemnitee, and shall cause each other Loan Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person.
(b) The obligations Without limiting the foregoing, “Indemnified Matters” includes all Environmental Liabilities, including those arising from, or otherwise involving, any property of any Borrower under this Clause will not be affected by Related Person or any actactual, omissionalleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, matter upon or thing whichinto such property or natural resource or any property on or contiguous to any real property of any Related Person, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known not, with respect to it any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Related Person or the owner, lessee or operator of any other person) including:
property of any Related Person through any foreclosure action, in each case except to the extent such Environmental Liabilities (i) are incurred solely following foreclosure by any time, waiver Secured Party or consent granted to, or composition with, following any Obligor, Secured Party having become the successor-in-interest to any beneficiary under an L/G or any other person;
Loan Party and (ii) the release are attributable solely to acts of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Indemnitee.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 3 contracts
Sources: Credit Agreement (Assisted Living Concepts Inc), Credit Agreement (Assisted Living Concepts Inc), Credit Agreement (Assisted Living Concepts Inc)
Indemnities. (a) Each The Borrower shall immediately on demand will indemnify each of the Arranger, each Lender, the Collateral Agent, the Administrative Agent and their respective affiliates and their officers, directors, employees, agents and advisors (each, an Issuing Bank "Indemnified Party") and hold each Indemnified ----------------- Party harmless from and against any costand all claims, loss or liability damages, losses, liabilities and expenses (including reasonable fees and expenses of counsel and, with respect to the Collateral Agent, reasonable allocated costs and expenses of in-house counsel and legal staff) that may be incurred by that Issuing Bank or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with:
(otherwise than A) this Agreement and any other Loan Documents, any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances; or
(B) the actual or alleged presence of Materials of Environmental Concern on any property of the Borrower or any environmental proceeding relating in any way to the Borrower, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by reason a court of that Issuing Bankcompetent jurisdiction to have resulted from such Indemnified Party's gross negligence, bad faith negligence or wilful willful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations In the case of any Borrower under investigation, litigation or other proceeding to which the indemnity in this Clause will Section 14.5(a) applies, the indemnity shall be effective whether or not be affected such investigation, litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified Party or any act, omission, matter other Person or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation Indemnified Party is otherwise a party thereto and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingstransactions contemplated hereby are consummated.
(c) Neither The Borrower also shall not to assert any claim against the Company nor Administrative Agent, the Collateral Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise 123 relating to this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(d) If any payment of principal of any Advance is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of any repayment or, prepayment or acceleration of the maturity of the Advances pursuant to Section 12.1 or for any other reason, the Borrower shall be entitled pay to reject payment otherwise due by it pursuant to this Agreement on the basis Administrative Agent for the account of such Lender any loss, cost or expense (including loss of anticipated profit) that any Lender may sustain or incur as a consequence of the argument making of any payment of an Advance on a day that an L/G is not the last day of the applicable Interest Period with respect thereto.
(e) The Borrower shall indemnify each Lender against any loss, cost or expense incurred by any Lender as a result of any failure to which an Issuing Bank claims payment should not have been issued fulfill on or should not have been issued under before the date specified in any Disbursement Claim for a requested Advance the applicable conditions set forth in Articles 10.1 and 11.1, including any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsparticipation in such requested Advance.
Appears in 3 contracts
Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Indemnities. In the event of any registered offering of Common Stock pursuant to this Agreement (for purposes of this Section 7, holders of Other Registrable Shares shall also be referred to as “Holders” and “Registrable Shares” shall include Other Registrable Shares):
7.1 The Company will indemnify and hold harmless, to the fullest extent permitted by law, any Holder and any underwriter for such Holder, and each person, if any, who controls the Holder or such underwriter, from and against any and all losses, damages, claims, liabilities, joint or several, costs and expenses (including any amounts paid in any settlement effected with the Company’s consent) to which the Holder or any such underwriter or controlling person may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any costuntrue statement or alleged untrue statement of any material fact contained in any registration statement or included in any prospectus, loss as amended or liability supplemented, or (b) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading, and the Company will reimburse the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any reasonable legal or any other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that Issuing Bank (otherwise than the Company will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by reason a Holder, such underwriter or such controlling persons in writing specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that Issuing Bank's gross negligencethe indemnity agreement contained in this subsection 7.1 shall not apply to amounts paid in settlement of any such claim, bad faith loss, damage, liability or wilful misconduct) action if such settlement is effected without the consent of the Company. Such indemnity shall remain in acting as an Issuing Bank under full force and effect regardless of any L/G requested investigation made by (or on behalf of) that Borrowerof the selling stockholder, the underwriter or any controlling person of the selling stockholder or the underwriter, and regardless of any sale in connection with such offering by the selling stockholder. Such indemnity shall survive the transfer of securities by a selling stockholder.
(b) The obligations of any Borrower under this Clause 7.2 Each Holder participating in a registration hereunder will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation indemnify and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by hold harmless the Company, any L/G underwriter for the Company, and each person, if any, who controls the Company or such underwriter, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling stockholder’s consent) to which the Company or any other document such controlling person and/or any such underwriter may become subject under applicable law or security;
otherwise, insofar as such losses, damages, claims, liabilities (vior actions or proceedings in respect thereof), costs or expenses arise out of or are based on (a) any unenforceability, illegality untrue or invalidity alleged untrue statement of any obligation material fact contained in any registration statement or included in any prospectus, as amended or supplemented, or (b) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and each such Holder will reimburse the Company, any underwriter and each such controlling person of the Company or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement) or omission (or alleged omission) made in a preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective or in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) the Company and (ii) any underwriter, if a copy of the final prospectus was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any person under of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 7.2 shall not apply to amounts paid in settlement of any Finance Documentsuch claim, loss, damage, liability or action if such settlement is effected without the consent of the Holders. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such ▇▇▇▇▇▇.
7.3 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 7.1 or 7.2 of notice of the commencement of any L/G action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 7.1 or 7.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder except to the extent the indemnifying party is prejudiced as a result thereof. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other document indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party and the indemnifying party and there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or security; or
parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 7.1 or 7.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (viia) any insolvency the indemnified party shall have employed counsel in accordance with the provision of the preceding sentence, (b) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or similar proceedings.
(c) Neither the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
7.4 In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (a) an indemnified party, exercising rights under this Agreement, makes a claim for indemnification pursuant to Section 7.1 or 3.1.2 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 7 provides for indemnification in such case, or (b) contribution under the Securities Act may be required on the part of any such indemnified party in circumstances for which indemnification is provided under this Section 7; then, and in each such case, the Company nor and such indemnified party will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that such Holder is responsible for the portion represented by the percentage that the public offering price of its Registrable Shares offered by and sold under the registration statement bears to the public offering price of all securities offered by and sold under such registration statement, and the Company and other selling Holders are responsible for the remaining portion; provided, however, that, in any Borrower shall such case: (i) no such Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Shares offered and sold by such Holder pursuant to such registration statement; (ii) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to reject payment otherwise due by it pursuant contribution from any person or entity who was not guilty of such fraudulent misrepresentation; and (iii) no Holder shall be required to this Agreement on the basis contribute any amount in excess of the argument that an L/G with respect to which an Issuing Bank claims payment should not amount such Holder would have been issued or should not have required to indemnify if indemnification had been issued under applicable in accordance with its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsterms.
Appears in 3 contracts
Sources: Registration Rights Agreement (Outbrain Inc.), Share Purchase Agreement (Outbrain Inc.), Share Purchase Agreement (Outbrain Inc.)
Indemnities. (a) Each Lender hereby agrees to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and expenses (and losses relating to Borrower’s market activities as a consequence of becoming, or liability of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith or with respect to this Agreement) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender of that Issuing Bank's gross negligence, bad faith any of its representations or wilful misconductwarranties contained in Section 7 or (ii) any breach by Lender of any of its covenants or agreements in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement agreements in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthis Agreement.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 12 (each an “Indemnifying Party”) shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 12. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by it pursuant to this Agreement on participate in and, if (i) in the basis good faith judgment of the argument Indemnified Party such claim can properly be resolved by money damages alone and the Indemnifying Party has the financial resources to pay such damages and (ii) the Indemnifying Party admits that an L/G with respect this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to which an Issuing Bank claims payment should not have been issued or should not have been issued under direct the defense of any claim at its terms expense, but such defense shall be conducted by that Issuing Bank pursuant legal counsel reasonably satisfactory to the terms Indemnified Party. An Indemnified Party shall not make any settlement of any claim or litigation under this Agreement or applicable law or regulationsSection 12 without the written consent of the Indemnifying Party.
Appears in 3 contracts
Sources: Share Lending Agreement (Jetblue Airways Corp), Share Lending Agreement (Sirius Xm Radio Inc.), Share Lending Agreement (Sirius Xm Radio Inc.)
Indemnities. (a) Each Lender hereby agrees to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, Taxes, penalties, obligations and expenses (including, without limitation, direct losses relating to Borrower’s market activities as a consequence of becoming subject to Section 16(b) under the Exchange Act, and including, without limitation, any forbearance from market activities or liability cessation of market activities and any losses in connection therewith or with respect to this Agreement) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender of any of its representations or warranties contained in Section 7, (ii) any breach by Lender of any of its covenants or agreements in this Agreement, in each case under (i) and (ii) above, to the extent that Issuing Bank's gross negligenceit has been finally adjudicated by a court of competent jurisdiction, bad faith evidenced by a final non-appealable order, that Borrower is liable to the Lender with respect to such claims, or wilful misconduct(iii) in acting as an Issuing Bank any Taxes relating to any payments under this Agreement made or to be made by Borrower or any L/G requested by (of its affiliates to Lender or on behalf of) that Borrowerany of its subsidiaries or affiliates.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, Taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under agreements in this Agreement, in each case to the terms extent that it has been finally adjudicated by a court of any composition or arrangement with any creditor or any member of the Group;
(iii) the takingcompetent jurisdiction, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any evidenced by a final non-presentation or non-observance of any formality or other requirement in appealable order, that Borrower is liable to the Lender with respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch claim.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 12 (each an “Indemnifying Party”) shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 12. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by participate in the defense of any claim and, to the extent that it pursuant shall wish, jointly with any other Indemnifying Party similarly notified, to this Agreement on assume the basis defense thereof (unless the Indemnified Party reasonably objects to such assumption), with counsel reasonably satisfactory to such Indemnified Party (who shall not, except with the consent of the argument that an L/G Indemnified Party, be counsel to the Indemnifying Party), and, after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (regardless of whether the Indemnified Party is an actual or potential party to which such action or claim) unless such settlement, compromise or judgment (i) includes an Issuing Bank claims payment should unconditional release of the Indemnified Party from all liability arising out of such action or claim and (ii) does not have been issued include a statement as to or should an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Party. An Indemnified Party shall not have been issued make any settlement of any claim or litigation under its terms by that Issuing Bank pursuant to this Section 12 without the terms written consent of this Agreement or applicable law or regulationsthe Indemnifying Party.
Appears in 2 contracts
Sources: Share Lending Agreement (Tilray Brands, Inc.), Share Lending Agreement (Opko Health, Inc.)
Indemnities. (a) Each Borrower shall immediately on demand The Parent and the Applicants jointly and severally agree to and hereby do indemnify and hold harmless the Administrative Agent, the Collateral Agent, Arrangers, Bookrunners, Syndication Agents, Issuers and Participants (together with their respective Affiliates (and controlling persons) and the respective officers, directors, employees, agents, members (and successors and assigns) of each of the foregoing, each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including reasonable, documented and customary fees, disbursements and expenses of financial and legal advisors to any such Indemnitee, provided that legal advisors shall be limited to the reasonable and documented fees, disbursements and expenses of (x) one firm of counsel for all Agents, Participants and Issuers, (y) one firm of local counsel in each relevant jurisdiction, and (z) in the case of an actual or perceived conflict of interest where the person affected by such conflict retains its own counsel, of another firm of counsel for such affected person in each relevant jurisdiction) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Applicants or any of its Affiliates, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Credit Document, any Obligation, any Letter of Credit, the Business Combination or any act, event or transaction related or attendant to any thereof, or the use or intended use of the Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank the Applicants shall not have any obligation under this Section 11.4 to an Indemnitee with respect to (otherwise than i) any Indemnified Matter caused by reason of that Issuing Bank's or resulting from the gross negligence, bad faith or wilful misconductwillful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order or order of an arbitral tribunal, (ii) a material breach of the Credit Documents by such Indemnitee, as determined by a court of competent jurisdiction in acting a final non-appealable judgment or order or order of an arbitral tribunal and (iii) any action brought by one Indemnitee against another Indemnitee (except in its capacity as an Issuing Bank Agent) which does not involve an act or omission by the Parent or any of its Affiliates or (iv) any settlement entered into by such Indemnitee without the Parent’s written consent (such consent not to be unreasonably withheld, conditioned or delayed); provided that the foregoing indemnity will apply to any such settlement in the event that the Parent was offered the ability to assume the defense of the action that was the subject matter of such settlement and elected not to so assume; provided, further, that if there is a final and non-appealable judgment by a court of competent jurisdiction, the Parent agrees to indemnify and hold harmless each Indemnitee 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 11.4. Without limiting the foregoing, but subject to the express limitations of the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Parent, the Applicants, or any of their respective Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Parent, the Applicants, or any of their respective Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Parent or any of its Subsidiaries, or the owner, lessee or operator of any property of the Parent or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure (or deed in lieu thereof) by the Administrative Agent, any Participant or any Issuer, or the Administrative Agent, the Collateral Agent, any Participant or any Issuer having become the successor in interest to the Parent, the Applicants, or any of their respective Subsidiaries and (y) attributable solely to acts of the Administrative Agent, such Participant or such Issuer or any agent on behalf ofof the Administrative Agent, such Participant or such Issuer. This Section 11.4(a) shall not apply with respect to Taxes other than any Taxes that Borrowerrepresent losses or damages arising from any non-Tax claim.
(b) The obligations Parent and each Applicant shall and does hereby jointly and severally indemnify each Agent, each Participant and each Issuer for, and hold each Agent, each Participant and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, any Participant and any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Credit Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither Promptly after receipt by an Indemnitee of service of any complaint or the Company nor commencement of any Borrower shall action or proceeding with respect to an Indemnified Matter, such Indemnitee will notify the Parent in writing of such complaint or of the commencement of such action or proceeding, but failure to so notify the Parent will relieve the Parent or the Applicants from the obligation to indemnify such Indemnitee only if and only to the extent that such failure results in the forfeiture by the Parent or the Applicants of substantial rights and defenses that actually and materially prejudice the Parent or the Applicants, and will not in any event relieve the Parent or the Applicants from any other obligation or liability that the Parent or the Applicants may have to any Indemnitee otherwise than in accordance with the provisions hereof. If the Parent or any Applicant so elects following its acknowledgment of its obligation to indemnify the Indemnitee, or if requested by such Indemnitee, the Parent or such Applicant will assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to such Indemnitee and the payment of the fees and disbursements of such counsel. In the event, however, such Indemnitee reasonably determines in its judgment that having common counsel would present such counsel with a conflict of interest or if the defendants in or targets of any such action or proceeding include an Indemnitee and the Parent or the Applicants and such Indemnitee reasonably concludes that there may be entitled legal defenses available to reject payment otherwise due by it or other Indemnitees that are different from or in addition to those available to the Parent or the Applicants, or if the Parent or the Applicants fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Indemnitee in a timely manner, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Parent and the Applicants will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the Parent and the Applicants will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for such Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Parent or the Applicants assume, the Indemnitee will have the right to participate in such litigation and to retain its own counsel at such Indemnitee’s own expense.
(d) The Parent and the Applicants jointly and severally agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank (including pursuant to this Section 11.4) or any other Credit Document shall (i) survive the terms termination of this Agreement and the payment in full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Credit Document.
Appears in 2 contracts
Sources: Letter of Credit Agreement (McDermott International Inc), Letter of Credit Agreement (McDermott International Inc)
Indemnities. Each Loan Party agrees to indemnify, pay, and hold each Agent Party and each Lender and its respective Affiliates and the respective partners, officers, directors, employees, agents, attorneys, advisors and representatives of each Lender and its respective Affiliates (athe “Indemnitees”) Each Borrower shall immediately on demand indemnify an Issuing Bank harmless from and against any costand all liabilities, loss obligations, losses (including reasonable fees of attorneys and consultants), damages, penalties, actions, judgments, suits and claims of any kind or liability nature whatsoever that may be imposed on, incurred by that Issuing Bank by, or asserted against the Indemnitee as a result of Administrative Agent and each Lender being a party to this Agreement or otherwise in connection with this Agreement, any of the other Loan Documents or any of the transactions contemplated hereby or thereby; provided that, (otherwise than by reason A) in the absence of that Issuing Bank's a conflict of interest, the Loan Parties shall only be required to pay the fees and expenses of one law firm for Administrative Agent and the Lenders (in addition to the expenses of local and special counsel for Administrative Agent and the Lenders) and (B) the Loan Parties shall have no obligation to an Indemnitee hereunder with respect to liabilities arising from the gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release willful misconduct of, or refusal or neglect to perfectbreach of any Loan Document by, take up or enforcethat Indemnitee, in each such case as determined by a final non appealable judgment of a court of competent jurisdiction. To the fullest extent permitted by Applicable Law, Borrower shall not assert, and hereby waives, any rights againstclaim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or security over assets as a result of, any Obligorthis Agreement, any beneficiary under an L/G other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit, or the use of the proceeds thereof. No Indemnitee referred to in this paragraph shall be liable for any damages arising from the use by unintended recipients of any information or other person or any non-presentation or non-observance of any formality materials distributed by it through telecommunications, electronic or other requirement information transmission systems in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G connection with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law the other Loan Documents or regulationsthe transactions contemplated hereby or thereby. This Subsection 9.1 and all indemnification provisions contained within any other Loan Document shall survive the termination of this Agreement.
Appears in 2 contracts
Sources: Third Amendment and Confirmation Agreement (ATN International, Inc.), Credit Agreement (Atlantic Tele Network Inc /De)
Indemnities. (a) Each Borrower shall immediately on demand In the event of any registered offering of Registrable Shares pursuant to this Agreement:
7.1. The Company will indemnify an Issuing Bank and hold harmless, to the fullest extent permitted by law, any Holder and any underwriter for such Holder, and each person, if any, who controls the Holder or such underwriter, from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs and expenses (otherwise than by reason of that Issuing Bank's gross negligenceincluding any amounts paid in any settlement effected with the Company’s consent) to which the Holder or any such underwriter or controlling person may become subject under applicable law or otherwise, bad faith or wilful misconduct) in acting insofar as an Issuing Bank under any L/G requested by such losses, damages, claims, liabilities (or on behalf of) that Borrower.
(b) The obligations actions or proceedings in respect thereof), costs or expenses arise out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon either: (i) any timeuntrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, waiver as amended or consent granted tosupplemented, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading; and the Company will reimburse the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any other Obligor reasonable legal or any other person under expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third- party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that the terms Company will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by a Holder, such underwriter or such controlling persons in writing specifically for inclusion therein; and further provided, that the indemnity agreement contained in this Section 7.1 shall not apply to amounts paid in settlement of any composition such claim, loss, damage, liability or arrangement action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder, the underwriter or any controlling person of the Holder or the underwriter, and regardless of any sale in connection with such offering by the Holder. Such indemnity shall survive the transfer of securities by a Holder.
7.2. Each Holder participating in a registration hereunder will indemnify and hold harmless the Company, its officers and directors, any underwriter for the Company, and each person, if any, who controls the Company or such underwriter, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling shareholder’s consent) to which the Company or any such controlling person and/or any such underwriter may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on either: (i) any untrue or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; and each such Holder will reimburse the Company, any underwriter and each such controlling person of the Company or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement) or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective or in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) the Company, or (ii) any underwriter, if a copy of the final prospectus was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act; provided, however, that the indemnity agreement contained in this Section 7.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld. In no event shall the liability of a Holder exceed the gross proceeds from the offering received by such Holder.
7.3. Promptly after receipt by an indemnified Party pursuant to the provisions of Section 7.1 or 7.2 above of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified Party will, if a claim thereof is to be made against the indemnifying Party pursuant to the provisions of said Section 7.1 or 7.2, promptly notify the indemnifying Party of the commencement thereof. The failure to deliver written notice to the indemnifying Party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying Party of any liability to the indemnified Party under this Section 7. In case such action is brought against any indemnified Party and it notifies the indemnifying Party of the commencement thereof, the indemnifying Party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor other indemnifying Party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified Party; provided, however, that if the defendants in any action include both the indemnified Party and the indemnifying Party and there is a conflict of interests which would prevent counsel for the indemnifying Party from also representing the indemnified Party, the indemnified Party or Parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified Party or Parties. After notice from the indemnifying Party to such indemnified Party of its election so to assume the defense thereof, the indemnifying Party will not be liable to such indemnified Party pursuant to the provisions of said Section 7.1 or 7.2 for any member legal or other expense subsequently incurred by such indemnified Party in connection with the defense thereof, unless: (i) the indemnified Party shall have employed counsel in accordance with the provision of the Group;
preceding sentence; (ii) the indemnifying Party shall not have employed counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the indemnified Party’s intention to employ separate counsel pursuant to the previous sentence; or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying Party has authorized the employment of counsel for the indemnified Party at the expense of the indemnifying Party. No indemnifying Party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Party of a release from all liability in respect of to such claim or litigation.
7.4. If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the Parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. In determining the basis amount of contribution to which the argument that an L/G respective Parties are entitled, there shall be considered the Parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms by that Issuing Bank pursuant the circumstances.
7.5. Notwithstanding the foregoing, to the terms of this Agreement or applicable law or regulationsextent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
Appears in 2 contracts
Sources: Share Purchase Agreement (Camtek LTD), Share Purchase Agreement (Camtek LTD)
Indemnities. (ai) Each Borrower shall immediately on demand agrees, jointly and severally, to indemnify and hold harmless each Agent, each Arranger, each Lender, each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Section 4 (Conditions Precedent)) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by that Issuing Bank (otherwise than or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by reason any such Indemnitee or any of that Issuing Bank's gross negligenceits directors, bad faith security holders or wilful misconduct) creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in acting as an Issuing Bank under any L/G requested by (equity, or on behalf of) that Borrower.
(b) The obligations contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any Borrower under this Clause will not be affected by other Loan Document, any Obligation, any Letter of Credit, or any act, omissionevent or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrowers shall not have any liability under this Section 10.4 to an Indemnitee with respect to any Indemnified Matter that has resulted from the gross negligence or thing which, but for this Clause, would reduce, release willful misconduct of such Indemnitee or prejudice any the material breach by such Indemnitee of its obligations under this Clause (without limitation and whether Agreement, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. This Section 10.4(a) shall not known apply with respect to it or Taxes other than any other person) including:
(i) any timeTaxes that represent losses, waiver or consent granted toclaims, or composition withdamages, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or etc. arising from any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsTax claim.
(cj) Neither the Company nor any Each Borrower shall be entitled jointly and severally indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold the Agents, the Arrangers, the Lenders and the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Arrangers, the Lenders and the Issuers for any broker, finder or consultant with respect to reject payment otherwise due any agreement, arrangement or understanding made by it or on behalf of any Loan Party or any of the Parent Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(k) Each Borrower, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding, in each case contemplated in clause (a) above, and each Borrower, in any event, may participate in the defense thereof with legal counsel of such Borrower’s choice. In the event that such indemnitee requests such Borrower to defend against such investigation, litigation or proceeding, such Borrower shall promptly do so and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense. No action taken by legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding shall vitiate or in any way impair the Borrowers’ obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(l) Each Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 10.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. Whether or not the transactions contemplated hereby shall be consummated, the Obligors agree to defend, indemnify, pay and hold harmless the Board, the Agent, the Collateral Agent, the Govco Administrative Agent, the Lenders, the Loan Administrator and their respective Affiliates, officers, directors, employees, agents and advisors (acollectively called the "Indemnitees") Each Borrower shall immediately on demand indemnify an Issuing Bank from and against any costand all liabilities, loss obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or liability nature whatsoever (including without limitation the reasonable fees and disbursements of counsel for such Indemnitees, but excluding Taxes), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including without limitation securities and commercial laws, statutes and rules or regulations), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner arising out of this Agreement, the other Loan Documents or the transactions contemplated hereby or thereby (including, without limitation, the use or intended use of the proceeds of the Loan) or any breach or default by the Obligors of any provision of the Loan Documents (collectively called the "Indemnified Liabilities"); provided that the Obligors shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise (i) from the gross negligence or willful misconduct of that Indemnitee (as actually and finally determined by a final and non-appealable judgment of a court of competent jurisdiction) and only to the extent that such Indemnified Liabilities constitute direct (as opposed to special, indirect, punitive or consequential) damages or (ii) constitute ordinary and usual operating or overhead expenses of an Indemnitee (excluding, without limitation, costs and expenses of any outside counsel, consultant or agent). To the extent that the undertaking to defend, indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, each of the Obligors 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 that Issuing Bank the Indemnitees or any of them. No Indemnitee shall have any liability (otherwise than by reason of that Issuing Bank's gross negligencewhether direct or indirect, bad faith in contract, tort or wilful misconductotherwise) in acting as an Issuing Bank under to any L/G requested by (Obligor or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnitee's gross negligence or willful misconduct. In no event, however, shall any Indemnitee be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). Without limitation of the generality of the foregoing, each Indemnitee (i) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable to any Obligor or any of its security holders or creditors for any action taken or omitted to be taken in good faith by it in accordance with the advice of such experts and (ii) shall incur no liability under or in respect to this Clause (without limitation and whether or not known to it Agreement, the Notes or any other personLoan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, facsimile transmission, cable or telex) including:
(i) any time, waiver believed by it to be genuine and signed or consent granted to, sent by the proper party or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) parties. The agreements in this Section 9.4 shall survive the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member termination of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms provisions of this Agreement and the other Loan Documents and, in the case of the Collateral Agent, shall survive the resignation or applicable law or regulationsremoval of the Collateral Agent hereunder.
Appears in 2 contracts
Sources: Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc)
Indemnities. In the event of any registered offering of Registrable Securities pursuant to this Section 2 or Section 3:
2.8.1 The Company will indemnify and hold harmless, to the fullest extent permitted by law, each Holder, any underwriter of such Holder, each person, if any, who controls the Holder or such underwriter and each of the foregoing person’s respective officers, directors, employees, partners, members, attorneys, advisors, agents or other representatives (a) Each Borrower shall immediately on demand indemnify an Issuing Bank a “Holder Indemnified Party”), from and against any costand all losses, loss damages, claims, liabilities, joint or liability several, costs and expenses (including any amounts paid in any settlement effected with the Company’s consent) to which any such Holder Indemnified Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or included in the prospectus, as amended or supplemented, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading and the Company will reimburse such Holder Indemnified Party promptly upon demand, for any reasonable documented, out-of-pocket legal or any other expenses incurred by that Issuing Bank them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding or (otherwise than iii) any violation of alleged violation by reason the Company of that Issuing Bank's gross negligencethe Securities Act, bad faith the Exchange Act or wilful misconduct) any state securities law or any rule or regulation thereunder, in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any connection with the performance of its obligations under this Clause (Agreement; provided that the Company will not be liable to any Holder Indemnified Party in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by such Holder Indemnified Party claiming for indemnification in writing specifically for inclusion therein; provided, further, that the indemnity agreement contained in this subsection 2.8.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without limitation the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and whether effect regardless of any investigation made by or not known on behalf of the Holder Indemnified Party and regardless of any sale in connection with such offering by the Holder Indemnified Party. Such indemnity shall survive the transfer of securities by a selling shareholder.
2.8.2 Each Holder participating in a registration hereunder will furnish to it the Company in writing any information regarding such Holder and his or her intended method of distribution of Registrable Securities as the Company may reasonably request and will indemnify and hold harmless the Company, any underwriter for the Company, any other person participating in the distribution, each person, if any, who controls the Company, such underwriter or such other person and each of the foregoing person’s respective officers, directors, employees, partners, members, attorneys, advisors, agents or other representatives (a “Company Indemnified Party”) including:
from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling shareholder’s consent) to which any such Company Indemnified Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on (i) any timeuntrue or alleged untrue statement of any material fact contained in the Registration Statement or included in the prospectus, waiver as amended or consent granted tosupplemented, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, but, in each case, only to the extent of such information relating to such Holder and provided in writing by such Holder, and each such Holder will reimburse such Company Indemnified Party promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity agreement shall be individual and several by each Holder. The indemnity agreement contained in this subsection 2.8.2 shall not apply to amounts paid in settlement of any other Obligor such claim, loss, damage, liability or action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
2.8.3 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 2.8.1 or 2.8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 2.8.1 or 2.8.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other person under indemnifying party similarly notified, to assume the terms defense thereof with counsel reasonably satisfactory to such indemnified party; provided that if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party reasonably believes that there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 2.8.1 or 2.8.2 for any composition legal or arrangement other expense subsequently incurred by such indemnified party in connection with any creditor or any member the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the Group;
preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement if such settlement or judgment requires an admission of fault or culpability on the part of the indemnified party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
2.8.4 If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses in such proportion as is appropriate to reflect the basis relative fault of each of the argument indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that an L/G resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by that Issuing Bank such Holder.
2.8.5 Notwithstanding anything to the contrary hereunder, no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to the terms this Section 2.8 from any person or entity who was not guilty of this Agreement or applicable law or regulationssuch fraudulent misrepresentation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Taboola.com Ltd.), Investors’ Rights Agreement (Taboola.com Ltd.)
Indemnities. (a) Each Borrower No Member, in its capacity as such, shall immediately on demand indemnify an Issuing Bank against be liable, responsible or accountable in damages or otherwise to the Company or to any costsuccessor, loss assignee or liability incurred transferee thereof for any act or omission performed or omitted by that Issuing Bank (otherwise than it in good faith pursuant to authority granted to it by reason this Agreement and in a manner reasonably believed by it to be within the scope of that Issuing Bank's gross negligence, bad faith or wilful misconduct) authority granted to it by this Agreement and in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthe best interests of the Company.
(b) The obligations Members do not guarantee, and shall not be liable for, the return of all or any portion of the Capital Contribution of any Borrower under this Clause will not be affected by Member or the payment of any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice distributions to any of its obligations under this Clause Member (without limitation and whether or not known to it or any other person) including:
(i) assignee, successor or transferee thereof), it being expressly agreed that any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G such return of all or any other person;
(ii) portion of a Capital Contribution or payment of distributions shall be made solely from the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member assets of the Group;
Company (iiiwhich shall not include any right of contribution from the Members) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsaccordance with this Agreement.
(c) Neither The Company shall indemnify, defend and hold harmless (i) each Member, as such, and (ii) any of the Company’s agents, employees, advisors and consultants, in their respective capacities as such, from and against any loss, liability, damage, cost or expense (including reasonable attorneys’ fees and expenses) arising out of or in defense of any demands, claims or lawsuits (derivative and otherwise) against the Company nor or such other Person, in or as a result of or relating to its capacity, actions or omissions or an affiliate thereof or as an officer, director, employee or controlling Person of any Borrower of them, or as an officer, manager, agent, employee, advisor or consultant of the Company, concerning the business or activities undertaken on behalf of the Company; provided, however, that there shall be no indemnification hereunder to the extent that the acts or omissions of the Members or such other Person (x) were not taken or made in accordance with the standard set forth in Section 6.4(a) hereof, (y) constitute gross negligence, intentional misconduct or fraud, or (z) have violated such other standard of conduct as under applicable law prevents indemnification hereunder.
(d) The Members and any other Person indemnified by the Company pursuant to Section 6.4(c) hereof shall be entitled to reject payment otherwise due receive, upon request, advances to cover the costs of defending any claim or action against such Person; provided, however, that such advances shall be repaid to the Company, with interest, to the extent the actions or omissions of such Member or other Person are found by it pursuant a court of competent jurisdiction upon entry of a final judgment not to this Agreement on have been taken or made in accordance with the basis standard set forth in Section 6.4(a) hereof or constitute gross negligence, intentional misconduct or fraud. All rights of the argument Members and others to indemnification hereunder shall survive the dissolution of the Company and the removal, dissolution or insolvency of any of the Members or the death, retirement, removal, dissolution, incompetency or insolvency of an agent, employee, advisor, consultant or other indemnifiable Person, provided that a claim for indemnification hereunder is made by or on behalf of the Person seeking such indemnification prior to the time distribution in liquidation of the assets of the Company is made.
(e) If the Company is made a party to any claim, dispute or litigation or otherwise incurs any loss, liability, damage, cost or expense by reason of the breach of the standard set forth in Section 6.4(a) hereof or due to an L/G with respect to which an Issuing Bank claims payment should not act or omission constituting gross negligence, intentional misconduct or fraud by any Member or such other Person as has been indemnified under Section 6.4(c) hereof, such Member or other Person shall indemnify and reimburse the Company for all loss, liability, damage, cost and expense incurred thereby (including reasonable attorney’s fees and expenses); provided, however, that such Member or other Person shall have been issued found by a court of competent jurisdiction upon entry of a final judgment to have violated such standard or should not have been issued taken such act or made such omission.
(f) The liability of the Company under its terms by that Issuing Bank pursuant this Section 6.4 is limited to the terms assets of this Agreement or applicable law or regulationsthe Company.
Appears in 2 contracts
Sources: Operating Agreement, Operating Agreement (Gencor Industries Inc)
Indemnities. (a) Each Lender hereby agrees to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and expenses (and losses relating to Borrower’s market activities as a consequence of becoming, or liability of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith or with respect to this Agreement) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender of that Issuing Bank's gross negligence, bad faith any of its representations or wilful misconductwarranties contained in Section 7 or (ii) any breach by Lender of any of its covenants or agreements in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses, incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement agreements in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthis Agreement.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 12 (each, an “Indemnifying Party”) shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 12. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by it pursuant to this Agreement on participate in and, if (i) in the basis judgment of the argument Indemnified Party such claim can properly be resolved by money damages alone and the Indemnifying Party has the financial resources to pay such damages and (ii) the Indemnifying Party admits that an L/G with respect this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to which an Issuing Bank claims payment should not have been issued or should not have been issued under direct the defense of any claim at its terms expense, but such defense shall be conducted by that Issuing Bank pursuant legal counsel reasonably satisfactory to the terms Indemnified Party. An Indemnified Party shall not make any settlement of any claim or litigation under this Agreement or applicable law or regulationsSection 12 without the written consent of the Indemnifying Party.
Appears in 2 contracts
Sources: Share Lending Agreement (Great Atlantic & Pacific Tea Co Inc), Share Lending Agreement (Great Atlantic & Pacific Tea Co Inc)
Indemnities. (a) Each Borrower shall immediately on demand In the event of any registered offering of Ordinary Stock pursuant to this Section 3:
3.8.1 The Company will indemnify an Issuing Bank and hold harmless, to the fullest extent permitted by law, any Holder and any underwriter for such Holder, and each person, if any, who controls the Holder or such underwriter, from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs and expenses (otherwise than by reason of that Issuing Bank's gross negligenceincluding any amounts paid in any settlement effected with the Company’s consent) to which the Holder or any such underwriter or controlling person may become subject under applicable law or otherwise, bad faith or wilful misconduct) in acting insofar as an Issuing Bank under any L/G requested by such losses, damages, claims, liabilities (or on behalf of) that Borrower.
(b) The obligations actions or proceedings in respect thereof), costs or expenses arise out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon (i) any timeuntrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, waiver as amended or consent granted tosupplemented, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading, and the Company will reimburse the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any other Obligor reasonable legal or any other person under expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that the terms Company will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by such Holder, such underwriter or such controlling persons in writing specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 3.8.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or arrangement action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the selling shareholder, the underwriter or any controlling person of the selling shareholder or the underwriter, and regardless of any sale in connection with such offering by the selling shareholder. Such indemnity shall survive the transfer of securities by a selling shareholder.
3.8.2 Each Holder participating in a registration hereunder, severally and not jointly, will indemnify and hold harmless the Company, any underwriter for the Company, and each person, if any, who controls the Company or such underwriter, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling shareholder’s consent) to which the Company or any such controlling person and/or any such underwriter may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on (i) any untrue or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and each such Holder will reimburse the Company, any underwriter and each such controlling person of the Company or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement) or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective or in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) the Company and (ii) any underwriter, if a copy of the final prospectus was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 3.8.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
3.8.3 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 3.8.1 or 3.8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 3.8.1 or 3.8.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party and the indemnifying party and there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 3.8.1 or 3.8.2 for any member legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the Group;
preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and within fifteen (15) days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
3.8.4 If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. In determining the basis amount of contribution to which the argument that an L/G respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationscircumstances.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Borderfree, Inc.)
Indemnities. Without limiting any other rights which the ----------- Company or the Bank Investors may have hereunder or under applicable law, the Transferor and CompuCom hereby agree to indemnify the Company, the Bank Investors, the Agent, the Liquidity Provider and the Credit Support Provider and any permitted assigns and their respective officers, directors and employees (collectively, "Indemnified Parties") from and against any and all damages, ------------------- losses, claims, liabilities, costs and expenses, including reasonable attorneys' fees (which such attorneys may be employees of the Bank Investors, the Liquidity Provider, the Credit Support Provider or the Agent) and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded ------------------- against or incurred by any of them arising out of or as a result of this Agreement or the ownership, either directly or indirectly, by the Company or the Bank Investors of the Transferred Interest excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of an Indemnified Party or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the generality of the foregoing, CompuCom and Transferor shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any costrepresentation or warranty made by CompuCom, loss the Collection Agent or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by the Transferor (or on behalf ofany of their respective officers) that Borrower.under or in connection with this Agreement, the Receivables Purchase Agreement, any Investor Report or any other information or report delivered by either of them pursuant hereto, which shall have been false or incorrect in any material respect when made or deemed made;
(b) The obligations the failure by CompuCom, the Collection Agent or the Transferor to comply with any applicable and material law, rule or regulation with respect to any Receivable or the related Contract, or the nonconformity of any Borrower Receivable or the related Contract with any such applicable and material law, rule or regulation;
(c) the failure to vest and maintain in the Transferor an undivided percentage ownership interest in the Receivables free and clear of any Adverse Claim or the failure to vest and maintain vested in the Company an undivided percentage ownership interest, to the extent of the Transferred Interest, or a first priority perfected security interest, in the Receivables and the Related Security and Collections with respect thereto, free and clear of any Adverse Claim;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under this Clause will the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, any part of which is included in the Transferred Interest;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable, any part of which is included in the Transferred Interest (including, without limitation, a defense based on such Receivable or the related Contract not be affected by any actbeing legal, omissionvalid and binding obligation of such Obligor enforceable against it in accordance with its terms), matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver claim resulting from the sale of merchandise or consent granted to, services related to such Receivable or composition with, any Obligor, any beneficiary under an L/G the furnishing or any other personfailure to furnish such merchandise or services;
(iif) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure of CompuCom or the Transferor, as Collection Agent or otherwise, to realise perform its duties or obligations in accordance with the full value provisions of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or securityArticle VI; or
(viig) any insolvency products liability claim or personal injury or property damage suit or other similar proceedings.
(c) Neither or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable; provided, however, that if the Company nor enters into agreements for the purchase -------- ------- of interests in receivables from one or more Other Transferors, the Company shall allocate such Indemnified Amounts which are in connection with the 66 Liquidity Provider Agreement, the Credit Support Agreement or the credit support furnished by the Credit Support Provider to the Transferor and CompuCom and each Other Transferor; and provided, further, that if such Indemnified Amounts are -------- ------- attributable to the Transferor and CompuCom and not attributable to any Borrower Other Transferor, the Transferor and CompuCom shall be entitled solely liable for such Indemnified Amounts or if such Indemnified Amounts are attributable to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should Other Transferors and not have been issued or should not have been issued under its terms by that Issuing Bank pursuant attributable to the terms of this Agreement or applicable law or regulationsTransferor and CompuCom, such Other Transferors shall be solely liable for such Indemnified Amounts.
Appears in 2 contracts
Sources: Transfer and Administration Agreement (Compucom Systems Inc), Transfer and Administration Agreement (Safeguard Scientifics Inc Et Al)
Indemnities. In addition to the payment of expenses pursuant to Section 9.05 hereof, the Borrower agrees to indemnify, pay and hold the Agent, the Syndication Agent, each Issuing Bank, the Documentation Agent and each Bank and their officers, directors, employees, agents, consultants, auditors, Affiliates and attorneys (a) Each Borrower shall immediately on demand indemnify an Issuing Bank collectively, called the “Indemnitees”), harmless from and against any costand all liabilities, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligenceobligations, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any Borrower under this Clause will not be affected by kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any actinvestigative, omissionadministrative or judicial proceeding commenced or threatened, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by or asserted against that Indemnitee, in any other person) including:
matter arising from (i) any timethe occurrence of an Event of Default hereunder or under the other Loan Documents, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release use or intended use of the proceeds of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
Loans, (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance exercise of any formality right or remedy hereunder or under any of the other requirement in respect of any instrument Loan Documents or any failure to realise the full value of any security;
(iv) any incapacity error, failure or lack of power, authority or legal personality of or dissolution or change delay in the members performance of any of the Banks’ obligations under this Agreement caused by natural disaster, fire, war, strike, civil unrest, error in inoperability of communication equipment or status of an Obligor or any beneficiary under an L/G lines or any other person;
circumstances beyond the control of the Banks (v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company“Indemnified Liabilities”); provided, any L/G or any other document or security;
(vi) any unenforceabilityhowever, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither that the Company nor any Borrower shall be entitled have no obligation to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G Indemnitee hereunder with respect to which an Issuing Bank claims payment should not have been issued Indemnified Liabilities arising from the gross negligence or should not have been issued under its terms by willful misconduct of that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsIndemnitee.
Appears in 2 contracts
Sources: Loan Agreement (Matthews International Corp), Loan Agreement (Matthews International Corp)
Indemnities. (a) Each Borrower shall immediately on demand The Company agrees to indemnify and hold harmless the Administrative Agent, the Arranger, each LC Participant and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions Precedent) (each such Person being an Issuing Bank “Indemnitee”)) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other LC Facility Document, any Obligation, any Letter of Credit or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Company shall not have any liability under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter that has resulted primarily from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of any Group Member involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning any Group Member, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Group Member, or the owner, lessee or operator of any property of any Group Member by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, the Arranger, any LC Participant or any Issuer, or the Administrative Agent, the Arranger, any LC Participant or any Issuer having become the successor in interest to any Group Member and (y) attributable solely to acts of the Administrative Agent, the Arranger, such LC Participant or such Issuer or any agent on behalf of) that Borrowerof the Administrative Agent, the Arranger, such LC Participant or such Issuer.
(b) The obligations Company shall indemnify the Administrative Agent, the Arranger, the LC Participants and each Issuer for, and hold the Administrative Agent, the LC Participants and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Arranger, the LC Participants and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Credit Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company nor to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense. No action taken by legal counsel chosen by such Indemnitee in defending against any Borrower such investigation, litigation or proceeding or requested Remedial Action, shall be entitled vitiate or in any way impair the Company’s obligation and duty hereunder to reject payment otherwise due by it indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other LC Facility Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other LC Facility Document.
Appears in 2 contracts
Sources: Amendment No. 7 (Tenet Healthcare Corp), Letter of Credit Facility Agreement (Tenet Healthcare Corp)
Indemnities. (a) Each Borrower shall immediately on demand indemnify Obligor agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender and each of their respective Related Persons (each such Person being an Issuing Bank "Indemnitee") from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Obligation (or the repayment thereof), the use or intended use of the proceeds of any Loan, the Refinancing, or any securities filing of, or with respect to, the Borrower and its Subsidiaries, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofof the Borrower, its Subsidiaries or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of securities or creditors (and including reasonable attorneys' fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the "Indemnified Matters"); provided, however, that Borrowerthe Obligors shall not have any liability under this Section 9.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, each Obligor waives and agrees not to assert against any Indemnitee any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person.
(b) The obligations Without limiting the foregoing, "Indemnified Matters" includes all Environmental Claims, including those arising from, or otherwise involving, any property of any the Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and Subsidiaries or any actual, alleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real property of the Borrower or any of its Subsidiaries, whether or not known not, with respect to it any such Environmental Claims, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to the Borrower or any other person) including:
of its Subsidiaries or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries through any foreclosure action, in each case except to the extent such Environmental Claims (i) are incurred solely following foreclosure by any time, waiver Secured Party or consent granted to, or composition with, following any Obligor, Secured Party having become the successor-in-interest to any beneficiary under an L/G or any other person;
Obligor and (ii) the release are attributable solely to acts of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Indemnitee.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 2 contracts
Sources: Loan Agreement (Us Airways Inc), Loan Agreement (Us Airways Group Inc)
Indemnities. (a) Each Borrower shall immediately on demand The Corporation hereby covenants and agrees to protect, indemnify an Issuing Bank and hold harmless the Agent and/or any of its respective affiliates and each of the directors, officers, employees, partners and counsel of the Agent (hereinafter referred to as the “Personnel”) harmless from and against any costand all expenses, losses (other than loss of profits), claims, actions, damages or liability liabilities, whether joint or several (including the aggregate amount paid in reasonable settlement of any actions, suits, proceedings, or claims), and the reasonable fees and expenses of its counsel that may be incurred in advising with respect to and/or defending any claim that may be made against the Agent and/or Personnel, to which the Agent and/or the Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Corporation by the Agent and the Personnel hereunder or otherwise in connection with the matters referred to in this Agreement, provided, however, that Issuing Bank this indemnity shall not apply to the extent that a court of competent jurisdiction in a final judgment or order that has become non- appealable shall determine that:
(otherwise than by reason i) the Agent and/or the Personnel have been negligent or dishonest or engaged in willful misconduct or have committed any fraudulent act in the course of that Issuing Bank's gross such performance;
(ii) the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, resulted from the negligence, bad faith dishonesty or wilful misconductfraud referred to in (i); or
(iii) in acting as an Issuing Bank under the event that the Agent breach any L/G requested by (material provision of this Agreement or on behalf of) that Borrowermaterial applicable law.
(b) The obligations Corporation agrees that in case any legal proceeding shall be brought against the Corporation and/or the Agent by any governmental commission of regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, and/or should the Corporation and/or the Agent and/or any Personnel of the Agent be investigated or required to testify in connection therewith or required to respond to procedures designed to discover information regarding or in connection with, or by reason of the performance of professional services rendered to the Corporation by the Agent, the Agent shall have the right to employ its own counsel in connection therewith, and other than the occurrence of any Borrower under this Clause will not of the events itemized in (i), (ii) and (iii) above, the reasonable fees and expenses of such counsel as well as the reasonable costs (including an amount to reimburse the Agent for time spent by the Personnel in connection therewith) and out of pocket expenses incurred by the Personnel in connection therewith shall be affected paid by the Corporation as they are incurred provided that the Corporation shall not, in any actevent, omission, matter contribute to the amount paid or thing which, but for this Clause, would reduce, release payable by the Agent or prejudice any of its obligations under this Clause (without limitation and whether Personnel as a result of such expense, loss, claim, damage or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition withliability, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member amount in excess of the Group;
(iii) amount of the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect aggregate gross proceeds that the Corporation received hereunder pursuant to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure this Agency Agreement to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingswhich this indemnity is attached.
(c) Neither Promptly after receipt of notice of the Company nor commencement of any Borrower legal proceeding against the Agent or any of the Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly upon any matter in respect of which indemnification may be sought from the Corporation, the Agent will notify the Corporation in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Corporation, will keep the Corporation advised of the progress thereof and will discuss with the Corporation all significant actions proposed. No admission of liability and no settlement of any proceeding or claim shall be entitled to reject payment otherwise due by it pursuant to this Agreement on made without the basis consent of the argument that an L/G with respect Corporation and the Agent, such consent not to be unreasonably withheld.
(d) The indemnity and contribution obligations of the Corporation shall be in addition to any liability which an Issuing Bank claims payment should not have been issued or should not have been issued under its the Corporation may otherwise have, shall extend upon the same terms by that Issuing Bank pursuant and conditions to the terms Personnel of the Agent and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Corporation, the Agent and any of the Personnel of the Agent. The foregoing provisions shall survive the completion of professional services rendered under this Agreement or applicable law or regulationsAgreement.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Indemnities. 12.1 The Owner will indemnify and save harmless the Mortgagee and each Receiver and each agent or attorney appointed under or pursuant to this Deed from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred or made by the Mortgagee or any Receiver or such agent or attorney:
(a) Each Borrower shall immediately on demand indemnify an Issuing Bank against in the exercise or purported exercise of any costrights, loss powers or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) discretions vested in acting as an Issuing Bank under any L/G requested by it pursuant to the Mortgage and this Deed (or on behalf of) that Borrower.either of them); or
(b) The obligations in the preservation or enforcement of the Mortgagee’ or any Receiver’s rights under the Mortgage and this Deed (or either of them); or
(c) on the release of the Ship or any share or interest therein from the security created by the Mortgage and this Deed (or either of them) and the Mortgagee or any Receiver and each such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by the Mortgage and this Deed (or either of them). All such amounts recoverable by the Mortgagee or any Receiver or such agent or attorney shall be recoverable on a full indemnity basis.
12.2 If any sum due from the Owner under or in connection with the Loan Agreement, the Mortgage and this Deed (or any of them) or under any order or judgement given or made in relation to the Loan Agreement, the Mortgage and this Deed (or any of them) has to be converted from the currency (the “first currency”) in which the same is payable under the Loan Agreement, the Mortgage and this Deed (or any of them) or under such order or judgement into another currency (“the second currency”) for the purpose of (i) making or filing a claim or proof against the Owner (ii) obtaining an order or judgement in any court or other tribunal or (iii) enforcing any order or judgement given or made in relation to the Loan Agreement, the Mortgage and this Deed (or any of them), the Owner shall indemnify and hold harmless the Mortgagee from and against any loss or damage suffered as a result of any Borrower discrepancy between (a) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (b) the rate or rates of exchange at which the Mortgagee may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in or towards satisfaction of any such order, judgement, claim or proof.
12.3 The indemnity contained in this Clause 12 shall apply irrespective of any indulgence granted to the Owner from time to time and shall continue in full force and effect notwithstanding any payment in favour of the Mortgagee and any amount due from the Owner under this Clause 12 will be due as a separate debt and shall not be affected by any act, omission, matter or thing which, but judgement being obtained for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver sums due under or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument the Loan Agreement, the Mortgage and the Deed (or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthem).
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 2 contracts
Sources: Deed of Covenant (FreeSeas Inc.), Deed of Covenant (FreeSeas Inc.)
Indemnities. In the event of any registered offering of Ordinary Shares pursuant to this Section 2:
2.8.1 The Company will indemnify and hold harmless, to the fullest extent permitted by law, any Holder and any underwriter (aas defined in the Securities Act) Each Borrower shall immediately on demand indemnify for such Holder, and each person, if any, who controls (within the meaning of the Securities Act) the Holder or such underwriter, and directors, officers, employees and agents of any of them (each, an Issuing Bank “Indemnified Person”) from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs and expenses (otherwise than by reason of that Issuing Bank's gross negligenceincluding any amounts paid in any settlement effected with the Company’s consent) to which such Indemnified Person may become subject under applicable law or otherwise, bad faith or wilful misconduct) in acting insofar as an Issuing Bank under any L/G requested by such losses, damages, claims, liabilities (or on behalf of) that Borrower.
(b) The obligations actions or proceedings in respect thereof), costs or expenses arise out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon: (i) any timeuntrue statement or alleged untrue statement of any material fact contained, waiver on the effective date thereof, in the Registration Statement or consent granted toincluded in any preliminary prospectus or final prospectus contained therein, or composition with, any Obligor, any beneficiary under an L/G amendment or any other person;
supplement thereto; (ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading; or (iii) any other Obligor violation by the Company of the Securities Act, the Exchange Act or any state securities law or any rule or regulation thereunder in connection with the registration. The Company will reimburse each such Indemnified Person, promptly upon demand, for any reasonable legal or attorney’s fees or any other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable to any Indemnified Person in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by such Indemnified Person specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 2.8.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder, the underwriter or any controlling person of the Holder or the underwriter, and regardless of any sale in connection with such offering by the Holder. Such indemnity shall survive the transfer of securities by a Holder.
2.8.2 Each Holder participating in a registration hereunder will indemnify and hold harmless the Company, each other Holder participating in such registration, any underwriter (as defined in the Securities Act) for the Company, or for any such other Holder, and each person, if any, who controls (within the meaning of the Securities Act) the Company or such underwriter or such other Holder, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling shareholder’s consent) to which the Company or any such controlling person and/or any such underwriter and/or such other Holder may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on: (i) any untrue or alleged untrue statement of any material fact contained, on the effective date thereof, in any Registration Statement under which shares were registered under the terms Securities Act at the request of such Holder, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto; or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and each such Holder will reimburse the Company, each other Holder participating in such registration, any underwriter and each such controlling person of the Company or any underwriter, promptly upon demand, for any reasonable legal or attorney’s fees or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by such Holder specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 2.8.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or arrangement action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
2.8.3 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 2.8.1 or 2.8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 2.8.1 or 2.8.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party and the indemnifying party and there is or is reasonably expected to be a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 2.8.1 or 2.8.2 for any member legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the Group;
preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and as soon as practicable and within fifteen (15) days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
2.8.4 If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses in such proportion as is appropriate to reflect the basis relative fault of each of the argument indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that an L/G resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by that Issuing Bank such Holder.
2.8.5 Notwithstanding anything to the contrary hereunder, no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution pursuant to the terms this Section 2.8 from any person or entity who was not guilty of this Agreement or applicable law or regulationssuch fraudulent misrepresentation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Valens Semiconductor Ltd.), Investors’ Rights Agreement (PTK Acquisition Corp.)
Indemnities. (a) Each Lender hereby agrees to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and expenses (and losses relating to Borrower’s market activities as a consequence of becoming, or liability of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith or with respect to this Agreement) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender of that Issuing Bank's gross negligence, bad faith any of its representations or wilful misconductwarranties contained in Section 7 or (ii) any breach by Lender of any of its covenants or agreements in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement agreements in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthis Agreement.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 10 (each an “Indemnifying Party”) shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 10. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by it pursuant to this Agreement on participate in and, if (i) in the basis good faith judgment of the argument Indemnified Party such claim can properly be resolved by money damages alone and the Indemnifying Party has the financial resources to pay such damages and (ii) the Indemnifying Party admits that an L/G with respect this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to which an Issuing Bank claims payment should not have been issued or should not have been issued under direct the defense of any claim at its terms expense, but such defense shall be conducted by that Issuing Bank pursuant legal counsel reasonably satisfactory to the terms Indemnified Party. An Indemnified Party shall not make any settlement of any claim or litigation under this Agreement or applicable law or regulationsSection 10 without the written consent of the Indemnifying Party.
Appears in 2 contracts
Sources: Share Lending Agreement (Lumen Investments S.A R.L.), Share Lending Agreement (Mittal Investments S.a.r.l.)
Indemnities. (a) Each Borrower shall immediately on demand indemnify agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender, each Person (other than the Borrowers) that is a party to a Secured Hedging Agreement, and each of their respective Related Persons (each such Person being an Issuing Bank “Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Related Document, any Disclosure Document, any Obligation (or the repayment thereof), the use or intended use of the proceeds of any Loan, any Related Transaction, or any securities filing of, or with respect to, any Borrower, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofof the Seller, any Borrower or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any Electronic Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of securities or creditors (and including attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that Borrowereach Borrower shall not have any liability under this Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of any Indemnitee. Furthermore, each Borrower waives and agrees not to assert against any Indemnitee, and shall cause each other Borrower to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person.
(b) The obligations Without limiting the foregoing, “Indemnified Matters” includes all Environmental Liabilities, including those arising from, or otherwise involving, or any actual, alleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real property of any Borrower under this Clause will not be affected by any actBorrower, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known not, with respect to it any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, or the successor-in-interest to any other person) including:
Related Person, in each case except to the extent such Environmental Liabilities (i) are incurred solely following foreclosure by any time, waiver Secured Party or consent granted to, or composition with, following any Obligor, Secured Party having become the successor-in-interest to any beneficiary under an L/G or any other person;
Borrower and (ii) the release are attributable solely to acts of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Indemnitee.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 2 contracts
Sources: Credit Agreement (Emeritus Corp\wa\), Credit Agreement (Emeritus Corp\wa\)
Indemnities. (a) Each Borrower shall immediately on demand The Borrowers agree to indemnify and hold harmless the Administrative Agent, each Arranger, each Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, the Disclosure Documents, the Term Loan Notes or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Term Loans or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than the Borrowers shall not have any obligation under this Section 10.4 to an Indemnitee with respect to any Indemnified Matter caused by reason or resulting primarily from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, Indemnified Matters include (i) in acting as an Issuing Bank all liabilities and costs arising under any L/G requested by Environmental Law relating to or connected with the past, present or future operations of the Administrative Borrower or any of its Subsidiaries or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants; (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Administrative Borrower or any of its Subsidiaries; (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. 9601 et seq.) as amended and applicable state property transfer laws, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent attributable to the gross negligence or willful action of the Administrative Agent, such Lender or any agent on behalf of) of the Administrative Agent, such Lender. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.4 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Borrower, any of its directors, securityholders or creditors, an Indemnitee or any other person, or an Indemnitee is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated; provided that Borrowerto the extent no conflict exists, the Loan Parties shall only be obligated to reimburse fees and expenses of one legal counsel for all Indemnified Persons in each relevant jurisdiction.
(b) The obligations Borrowers shall indemnify the Administrative Agent, the Lenders for, and hold the Administrative Agent, the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Administrative Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Administrative Borrower, in any event, may participate in the defense thereof with legal counsel of the Administrative Borrower’s choice. In the event that such Indemnitee requests the Administrative Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Administrative Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrowers’ obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 10.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Tousa Inc), Second Lien Term Loan Credit Agreement (Tousa Inc)
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, each Lender and each Issuer (including each Person obligated on a Secured Hedging Contract if such Person was a Lender, Issuer, Agent or an Affiliate of an Agent at the time it entered into such Secured Hedging Contract) and each of their respective Affiliates, the directors, officers, employees, agents, trustees, shareholders, controlling persons, members, representatives, attorneys, consultants, advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Loans And Letters Of Credit) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by the Borrower, the Acquired Business, the Seller, or a third party or any of their respective Affiliates, any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Secured Obligation, any Letter of Credit, any Disclosure Document, any Related Document, the Transactions or any act, claim, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not have any liability under this Section 11.4 to an Issuing Bank against Indemnitee with respect to any costIndemnified Matter to the extent it that has resulted primarily from the bad faith, loss gross negligence or liability incurred by that Issuing Bank (otherwise than by reason willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, the Collateral Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, the Collateral Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof such Agent, such Lender or such Issuer.
(b) The obligations Borrower shall indemnify the Administrative Agent, the Collateral Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Collateral Agent, the Lenders and each issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Collateral Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to the Existing Credit Agreement (including pursuant to Section 11.4 thereof) or any other Loan Document (as defined in the Existing Credit Agreement and each an “Existing Loan Document”) shall survive the effectiveness of this Agreement and any indemnification or other protection provided to any Indemnitee pursuant to the Existing Credit Agreement, any other Existing Loan Document, this Agreement (including pursuant to this Agreement on the basis Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under the Existing Credit Agreement, any other Existing Loan Document, this Agreement or applicable law any other Loan Document.
(e) Notwithstanding the foregoing Section 11.4, an Indemnitee shall effect no settlement or regulationsany claims or proceeding for which indemnification is sought without the prior written consent of the Borrower (such consent shall not be unreasonably withheld or delayed).
(f) In connection with any Indemnified Matters or any other claim or proceeding (or group of dated claims or proceedings) subject to the foregoing Section 11.4, the Borrower shall not be required to reimburse the Administrative Agent and the Lenders for the expenses of more than one counsel for the Administrative Agent and one counsel for the Lenders (in each case, in addition to the expenses of any appropriate local and special counsel).
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Indemnities. If any Registrable Shares are included in a registration statement pursuant to this Agreement:
5.1. The Company will indemnify and hold harmless, to the fullest extent permitted by law, the Holder, any underwriter (aas defined in the Securities Act) Each Borrower shall immediately on demand indemnify an Issuing Bank for the Holder, and each person, if any, who controls the Holder or such underwriter (collectively and individually referred to as the “Indemnified Party”), from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs, and expenses (otherwise than by reason of that Issuing Bank's gross negligenceincluding any amounts paid in any settlement effected with the Company’s consent, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause which consent will not be affected by any actunreasonably withheld) to which such Indemnified Party may become subject under applicable law or otherwise, omissioninsofar as such losses, matter damages, claims, liabilities (or thing whichactions or proceedings in respect thereof), but for this Clausecosts, would reduce, release or prejudice any expenses arise out of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon (i) any timeuntrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, waiver as amended or consent granted tosupplemented (including, or composition within each case, any Obligorall documents incorporated by reference therein, any beneficiary under an L/G or any other person;
as such documents may have been updated by later dated documents), (ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, or (iii) any other Obligor violation or alleged violation by the Company of the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any rules or regulations promulgated thereunder, and the Company will reimburse each Indemnified Party, promptly upon demand, for any reasonable legal or any other person under expenses incurred by them in connection with investigating, preparing to defend, or defending against, or appearing as a third-party witness in connection with such loss, claim, damage, liability, action, or proceeding; provided, however, that the terms Company will not be liable in any such case to the extent that any such loss, damage, liability, cost, or expense arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission, so made in conformity with information furnished to the Company by the Indemnified Party, in writing, specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; and provided, further, that the indemnity agreement contained in this Section 5.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or arrangement action if such settlement is effected without the Company’s consent, which consent will not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party, and regardless of any sale in connection with such offering by the Holder. Such indemnity shall survive the transfer of securities by the Holder.
5.2. The Holder will indemnify and hold harmless, to the fullest extent permitted by law, the Company, the Company, its officers, directors, any underwriter for the Company, and each person, if any, who controls the Company or such underwriter (collectively and individually, the “Indemnifiable Parties”), from and against any and all losses, damages, claims, liabilities, costs, or expenses (including any amount paid in any settlement effected with the Holder’s consent, which consent will not be unreasonably withheld) to any Indemnifiable Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities or actions or proceedings in respect thereof, costs, or expense arise out of or are based on (i) any untrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, including, in each case, all documents incorporated by reference therein, as such documents may have been updated by later dated documents, or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, and the Holder will reimburse each Indemnifiable Party, promptly upon demand, for any reasonable legal or other expenses incurred by such Indemnifiable Party in connection with investigating, preparing to defend, or defending against, or appearing as a third-party witness in connection with such loss, claim, damage, action, or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by the Holder specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement), or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective in the final prospectus, such indemnity agreement shall not inure to the benefit of (a) the Company, and (b) any underwriter, if a copy of the final prospectus was not furnished to the person or entity asserting the loss, liability, claim, or damage at or prior to the time such furnishing is required by the Security Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this Section 5.2 shall not apply to amounts paid in settlement of any such claim loss, damage, liability, or action if such settlement is effected without the consent of the Holder, as the case may be, which consent shall not be unreasonably withheld; and provided, further, that the maximum amount of liability in respect of such indemnification shall be limited, in the case of the Holder, to an amount equal to the net proceeds actually received by the Holder from the sale of Registrable Shares sold pursuant to such registration.
5.3. Promptly after receipt by an Indemnified and/or Indemnifiable Party pursuant to the provisions of Section 5.1 or 5.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such Indemnified and/or Indemnifiable Party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 5.1 or 5.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party shall only relieve it from any liability which it may have to any Indemnified and/or Indemnifiable Party to the extent that such indemnifying party has been damaged by such omission to notify hereunder. In case such action is brought against any Indemnified and/or Indemnifiable party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified or Indemnifiable Party; provided, however, that if the defendants in any member action include both the Indemnified or Indemnifiable Party and the indemnifying party and if in the reasonable judgment of the Group;
Indemnified or Indemnifiable party there are separate defenses that are available to the Indemnified or Indemnifiable party or there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the Indemnified or Indemnifiable party, the Indemnified or Indemnifiable Party(ies) shall have the right to select, at the expense of the indemnifying party, separate counsel to participate in the defense of such action; provided, further, however, that if the Holder is the Indemnified Party, the Holder shall be entitled to one (1) separate counsel at the expense of the Company and if underwriters are also Indemnified parties who are entitled to counsel separate from the indemnifying party, then all underwriters as a group shall be entitled to one (1) separate counsel at the expense of the Company. After notice from the indemnifying party of its election so to assume the defense thereof, the indemnifying party will not be liable to such Indemnified or Indemnifiable Party pursuant to the provisions of said Section 5.1 or 5.2 above for any legal or other expense subsequently incurred by such Indemnified or Indemnifiable Party in connection with the defense thereof, unless (i) the Indemnified or Indemnifiable Party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the Indemnified or Indemnifiable Party to represent the same within a reasonable time after the notice of the commencement of the action and within fifteen (15) days after written notice of the Indemnified or Indemnifiable Party’s intention to employ separate counsel pursuant to the previous sentence, (iii) the taking, variation, compromise, exchange, renewal indemnifying party has authorized the employment of counsel for the Indemnified or release ofIndemnifiable Party at the expense of the indemnifying party, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) the indemnifying party has authorized the employment of counsel but such party or counsel fails to vigorously defend the action. No indemnifying party will consent to entry of any incapacity judgment or lack of powerenter into any settlement, authority which does not include as an unconditional term thereof the giving by the claimant or legal personality of plaintiff to such Indemnified or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement Indemnifiable Party of a Finance Document consented release from all liability in respect to such claim or litigation.
5.4. If recovery is not available under the foregoing indemnification provisions, for any reason other than as specified therein, the parties entitled to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses. In determining the basis amount of contribution to which the argument that an L/G respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should the right to indemnification was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable consideration appropriate under the circumstances. In no event shall any party that is found liable for fraudulent misrepresentation within the meaning of Section 1(f) of the Securities Act be entitled to contribution hereunder from any party not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsfound so liable.
Appears in 2 contracts
Sources: Voting Agreement (Nur Macroprinters LTD), Registration Rights Agreement (Nur Macroprinters LTD)
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, each Lender and each Issuer (including each Person obligated on a Secured Hedging Contract if such Person was a Lender, Issuer, Agent or an Affiliate of an Agent at the time it entered into such Secured Hedging Contract) and each of their respective Affiliates, the directors, officers, employees, agents, trustees, shareholders, controlling persons, members, representatives, attorneys, consultants, advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Loans And Letters Of Credit) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by the Borrower, the Acquired Business, the Seller, or a third party or any of their respective Affiliates, any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Secured Obligation, any Letter of Credit, any Disclosure Document, any Related Document, the Transactions or any act, claim, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not have any liability under this Section 11.4 to an Issuing Bank against Indemnitee with respect to any costIndemnified Matter to the extent it that has resulted primarily from the bad faith, loss gross negligence or liability incurred by that Issuing Bank (otherwise than by reason willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, the Collateral Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, the Collateral Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof such Agent, such Lender or such Issuer.
(b) The obligations Borrower shall indemnify the Administrative Agent, the Collateral Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Collateral Agent, the Lenders and each issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Collateral Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to (x) the Prior Credit Agreement (including pursuant to Section 11.4 thereof) or any other Loan Document (as defined in the Prior Credit Agreement and each an “Prior Loan Document”) and (y) the Existing Credit Agreement (including pursuant to Section 11.4 thereof) or any other Loan Document (as defined in the Existing Credit Agreement and each an “Existing Loan Document”) shall survive the effectiveness of this Agreement and any indemnification or other protection provided to any Indemnitee pursuant to the Prior Credit Agreement, any other Prior Loan Document, the Existing Credit Agreement, any other Existing Loan Document, this Agreement (including pursuant to this Agreement on the basis Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under the Prior Credit Agreement, any other Prior Loan Document, the Existing Credit Agreement, any other Existing Loan Document, this Agreement or applicable law any other Loan Document.
(e) Notwithstanding the foregoing Section 11.4, an Indemnitee shall effect no settlement or regulationsany claims or proceeding for which indemnification is sought without the prior written consent of the Borrower (such consent shall not be unreasonably withheld or delayed).
(f) In connection with any Indemnified Matters or any other claim or proceeding (or group of dated claims or proceedings) subject to the foregoing Section 11.4, the Borrower shall not be required to reimburse the Administrative Agent and the Lenders for the expenses of more than one counsel for the Administrative Agent and one counsel for the Lenders (in each case, in addition to the expenses of any appropriate local and special counsel).
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Indemnities. If any Registrable Shares are included in a registration statement pursuant to this Agreement:
6.1. The Company will indemnify and hold harmless, to the fullest extent permitted by law, each Holder, any underwriter (aas defined in the Securities Act) Each Borrower shall immediately on demand indemnify an Issuing Bank for such Holder, and each person, if any, who controls such Holder or such underwriter (collectively and individually referred to as the "Indemnified Party"), from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs, and expenses (otherwise than by reason of that Issuing Bank's gross negligenceincluding any amounts paid in any settlement effected with the Company’s consent, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause which consent will not be affected by any actunreasonably withheld) to which such Indemnified Party may become subject under applicable law or otherwise, omissioninsofar as such losses, matter damages, claims, liabilities (or thing whichactions or proceedings in respect thereof), but for this Clausecosts, would reduce, release or prejudice any expenses arise out of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon (i) any timeuntrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, waiver as amended or consent granted tosupplemented (including, in each case, all documents incorporated by reference therein, as such documents may have been updated by later dated documents), or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading or (iii) any other Obligor violation or alleged violation by the Company of the Securities Act or the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or any rules or regulations promulgated thereunder, and the Company will reimburse each Indemnified Party, promptly upon demand, for any reasonable legal or any other person under expenses incurred by them in connection with investigating, preparing to defend, or defending against, or appearing as a third-party witness in connection with such loss, claim, damage, liability, action, or proceeding; provided, however, that the terms Company will not be liable in any such case to the extent that any such loss, damage, liability, cost, or expense arises solely out of or is based solely upon an untrue statement or alleged untrue statement, or omission or alleged omission, so made in conformity with information furnished to the Company by the Indemnified Party, in writing, specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; and provided, further, that the indemnity agreement contained in this Section 6.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or arrangement with action if such settlement is effected without the Company’s consent, which consent will not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any creditor investigation made by or any member on behalf of the Group;Indemnified Party, and regardless of any sale in connection with such offering by such Holder. Such indemnity shall survive the transfer of securities by a Holder.
6.2. Each Holder participating in a registration hereunder will indemnify and hold harmless the Company its Executive Officers, Directors, any underwriter for the Company, and each person, if any, who controls the Company or such underwriter (collectively and individually, the "Indemnifiable Parties"), from and against any and all losses, damages, claims, liabilities, costs, or expenses (including any amount paid in any settlement effected with such Holder’s consent, which consent will not be unreasonably withheld) to any Indemnifiable Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs, or expense arise out of or are based on (i) any untrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented (including, in each case, all documents incorporated by reference therein, as such documents may have been updated by later dated documents), or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, or (iii) any violation or alleged violation by the taking, variation, compromise, exchange, renewal Company of the Securities Act or release ofthe Securities and Exchange Act, or refusal any rules or neglect regulations promulgated thereunder and such Holder will reimburse each Indemnifiable Party, promptly upon demand, for any reasonable legal or other expenses incurred by such Indemnifiable Party in connection with investigating, preparing to perfectdefend, take up or enforce, any rights defending against, or security over assets ofappearing as a third-party witness in connection with such loss, claim, damage, action, or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any Obligorsuch untrue statement (or alleged untrue statement), any beneficiary under an L/G or other person omission (or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(ivalleged omission) any incapacity or lack of power, authority or legal personality of or dissolution or change made in the members preliminary prospectus but eliminated or status remedied in the amended prospectus at the time the registration statement becomes effective in the final prospectus, such indemnity agreement shall not inure to the benefit of an Obligor or any beneficiary under an L/G or any other person;
(vi) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
and (viii) any unenforceabilityunderwriter, illegality if a copy of the final prospectus was not furnished to the person or invalidity entity asserting the loss, liability, claim, or damage at or prior to the time such furnishing is required by the Security Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any obligation of any person under any Finance Documentits due diligence obligations; provided, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither further, that the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.indemnity agreement contained in this
Appears in 2 contracts
Sources: Warrant Agreement (Nur Macroprinters LTD), Warrant Agreement (Nur Macroprinters LTD)
Indemnities. (a) Each Borrower shall immediately Except as provided in Section 8.2(b) below, Seller agrees to assume liability for and to indemnify Buyer or any of its officers, employees or agents (the "Indemnitees") (other than solely in its capacity as a manufacturer of the Engine) against and agrees to pay on demand indemnify an Issuing Bank against any costand all Losses (as defined in the Lease) which Buyer may suffer or incur at any time, loss whether directly or indirectly, arising out of, related to or in any way connected with:
(i) the purchase hereunder, ownership, maintenance, repair, possession, import, export, registration, storage, modification, leasing, insurance, inspection, testing, design, sub-leasing, use, condition or other matters relating to the Engines or any part thereof (regardless of whether such Losses are based on strict liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross in tort, any act or omission, including the negligence, bad faith of any Indemnitee, or wilful misconductotherwise); or
(ii) the design of any article or material in acting as an Issuing Bank under the any L/G requested Engine or any Part or its operation, including any defect in design and regardless of whether it is discoverable, and any infringement of patent, copyright, trademark, design or other proprietary right claimed by (any Person or on behalf of) that Borrowera breach of any obligation of confidentiality claimed to be owed to any Person.
(b) The Seller is not required to indemnify any particular Indemnitee under Section 8.2(a) (without, however, limiting Seller's obligations as lessee under the Lease), to the extent a particular Loss:
(i) arises out of any Borrower under this Clause will not be affected by any act, omission, matter event or thing which, but for circumstance occurring after Delivery;
(ii) is caused by the gross negligence or wilful misconduct of that Indemnitee;
(iii) is the result of failure by Buyer to comply with any of its express obligations under this Clause, would reduce, release Agreement (unless such failure is caused by failure by Seller to comply with any of its express obligations under this Agreement) or prejudice any representation or warranty given by Buyer not being true and correct;
(iv) is related to any Taxes;
(v) constitutes ordinary and usual operating or overhead expenses of such Indemnitee (other than where such expense is caused by the occurrence of any breach by Seller of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or securityAgreement);
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or securityis a Loss which Buyer and Seller have agreed in writing is to be excluded; or
(vii) a Loss relating to, resulting from, arising out of or in connection with a "prohibited transaction" within the meaning of Section 406 of ERISA (as defined in the Lease) or Section 4975(c)(1) of the Internal Revenue Code of 1986 resulting from the direct or indirect use of assets or any insolvency ERISA Plan to acquire or similar proceedingshold Buyer's interest in the Engine or in the case of any transferee of the Buyer, to purchase the Engine from the Buyer.
(c) Neither The parties hereto expressly agree that the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis provisions of Sections 10(c), (d), (e) and (f) of the argument that an L/G with CTA shall apply MUTATIS MUTANDIS in respect to which an Issuing Bank claims payment should not have been issued or should not have been issued of any Loss and indemnification provided for under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsSection 8.2.
Appears in 2 contracts
Sources: Engine Purchase Agreement (Republic Airways Holdings Inc), Engine Purchase Agreement (Republic Airways Holdings Inc)
Indemnities. The LEP shall indemnify and keep the Local Authority fully indemnified at all times for and against all claims (aincluding any claim made by any person (including any Prospective Tenderer, Tenderer or Preferred Tenderer) Each Borrower that is not awarded a contract), demands or notices which may be brought or alleged or threatened against the Local Authority and from and against all Direct Losses or fines which the Local Authority may suffer or incur in relation to any such claims, demands or notices which occur as a result of or in connection with any breach of the provisions of this Schedule; save and to the extent that any such breach or claim results from any failure of the Local Authority to comply with the express provisions of this Schedule. Where the LEP is required by this Agreement to carry out Market Testing, for the purpose of clause 17.4 (Prohibited Acts and prohibition on corruption) it shall immediately be an additional Prohibited Act for the LEP or any Associated Entity (or anyone acting on demand indemnify an Issuing Bank against its behalf) to: accept or agree to accept any cost, loss gift or liability incurred by that Issuing Bank (otherwise than by reason consideration of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting any kind as an Issuing Bank under any L/G requested by inducement or reward: for doing or not doing (or on behalf offor having done or not having done) that Borrower.
(b) The obligations any act in relation to the obtaining or performance of any Borrower under subcontract to this Clause will not be affected by any act, omission, matter Agreement; or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether showing or not known showing favour or disfavour to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under in relation to any Finance Documentsub-contract to this Agreement, enter into any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant sub-contract relating to this Agreement on in connection with which commission has been paid or has been agreed to be paid unless, before the basis sub-contract is made, particulars of any such commission and of the argument that an L/G with respect to which an Issuing Bank claims terms and conditions of any such agreement for the payment should not of such commission have been issued or should not have been issued under its terms by that Issuing Bank pursuant disclosed in writing to the terms Local Authority and they have consented to the same (in their absolute discretion), and the provisions of this Agreement or applicable law or regulationsclause 17.4 (Prohibited Acts and prohibition on corruption) (changed according to context) shall apply and be construed accordingly.
Appears in 2 contracts
Sources: Strategic Partnering Agreement, Strategic Partnering Agreement
Indemnities. (a) Each Borrower The Company shall immediately on demand indemnify an Issuing Bank against any costpay, loss or liability reimburse the Lender for (i) all out- of-pocket costs and expenses (including, without limitation, attorneys' fees and expenses not to exceed $2,500) paid or incurred by that Issuing Bank the Lender in connection with the negotiation, preparation, execution and delivery of this Agreement, the Note, the Warrant, the Stock Issuance Agreement, and any other document required hereunder or thereunder; (otherwise ii) all out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) paid or incurred by the Lender in connection with the negotiation, preparation, execution and delivery of any amendment, supplement, modification or waiver of any of the documents referenced above or before and after judgment in enforcing, protecting or preserving his rights under this Agreement, the Note, the Warrant, the Stock Issuance Agreement, and other documents required hereunder or thereunder; and (iii) any and all recording and filing fees and any and all stamp, excise, intangibles and other taxes (other than by reason income taxes), if any, which may be payable or determined to be payable in connection with the negotiation, preparation, execution, delivery, administration or enforcement of that Issuing Bank's gross negligencethis Agreement, bad faith the Note, the Warrant, the Stock Issuance Agreement, or wilful misconduct) any other document required hereunder or thereunder or any amendment, supplement, modification or waiver of or to any of the foregoing, or consummation of any of the transactions contemplated hereby or thereby, including all costs and expenses incurred in acting as an Issuing Bank under contesting the imposition of any L/G requested by (such tax, and any and all liability with respect to or on behalf of) that Borrowerresulting from any delay in paying the same, whether such taxes are levied upon the Lender, the Company or otherwise.
(b) The obligations Company agrees to indemnify the Lender against any and all losses, claims, damages, liabilities and expenses, (including, without limitation, reasonable attorneys' fees and expenses) incurred by the Lender arising out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
resulting from (i) any time, waiver acquisition or consent granted to, attempted acquisition of stock or composition with, any Obligor, any beneficiary under an L/G assets of another person or entity by the Company or any other person;
subsidiary, (ii) the release use of any other Obligor of the proceeds of the loan made hereunder by the Company for the making or any other person under the terms furtherance of any composition such acquisition or arrangement with any creditor or any member of the Group;
attempted acquisition, (iii) the takingconstruction or operation of any facility owned or operated by the Company or any subsidiary, variation, compromise, exchange, renewal or release resulting from any pollution or other environmental condition on the site of, or refusal or neglect to perfect, take up or enforcecaused by, any rights againstsuch facility, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) the negotiation, preparation, execution, delivery and enforcement of this Agreement, the Note, the Warrant, the Stock Issuance Agreement, and any incapacity other document required hereunder or lack of powerthereunder, authority including without limitation any amendment, supplement, modification or legal personality waiver of or dissolution to any of the foregoing or change in the members consummation or status failure to consummate the transactions contemplated hereby or thereby, or the performance by the parties of an Obligor their obligations hereunder or any beneficiary under an L/G or any other person;
thereunder, (v) any amendment claim, litigation, investigation or proceedings related to any of the foregoing, whether or not the Lender is a party thereto; provided, however, that such indemnity shall not apply to any such losses, claims, damages, liabilities or related expenses arising from (however fundamentalA) any breach by the Lender of his obligations under this Agreement, or replacement in his fiduciary duties as a director of the Company for which he would not otherwise be entitled to indemnification as a Finance Document consented to by director of the Company, any L/G or any other document or security;
(viB) any unenforceabilitycommitment made by the Lender to a person other than the Company which would be breached by the performance of the Lender's obligations under this Agreement or (C) Lender's gross negligence or willful misconduct; and provided further that clauses (i), illegality (ii) and (iii) of this paragraph shall apply only to losses, claims, damages, liabilities and expenses arising out of or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsresulting from third party claims.
(c) Neither The foregoing agreements and indemnities shall remain operative and in full force and effect regardless of termination of this Agreement, the Company nor any Borrower shall be entitled consummation of or failure to reject payment otherwise due consummate either the transactions contemplated by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law any amendment, supplement, modification or regulationswaiver, the repayment of the loan made hereunder, the invalidity or unenforceability of any term or provision of this Agreement, the Note, the Warrant, the Stock Issuance Agreement, or any other document required hereunder or thereunder, any investigation made by or on behalf of the Lender, or the content or accuracy of any representation or warranty made under this Agreement or any other document required hereunder or thereunder.
Appears in 2 contracts
Sources: Note Purchase and Warrant Agreement (Dearholt Stephen M), Note Purchase and Warrant Agreement (Dearholt Stephen M)
Indemnities. (a) Each Borrower shall immediately on demand agrees to indemnify and hold harmless Lender and each of its directors, officers, employees, agents, representatives, attorneys, consultants and advisors of or to any of the foregoing (each such Person being an Issuing Bank "Indemnitee") from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including reasonable fees and disbursements of counsel to any such Indemnitee, but excluding taxes imposed on or measured by the Indemnitee's net income and franchise taxes, imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such Indemnitee is organized or in which its principal office is located) which may be imposed on, incurred by that Issuing Bank or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or in contract, tort or otherwise, relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Credit Enhancement or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or in connection with any investigation of any potential matter covered hereby (otherwise than by reason of that Issuing Bank's gross negligencecollectively, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthe "Indemnified Matters").
(b) The obligations of Borrower agrees that any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G indemnification or other person or protection provided to any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it Indemnitee pursuant to this Agreement on the basis or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Union Carbide Corp /New/), Revolving Credit Agreement (Union Carbide Corp /New/)
Indemnities. (a) Each The Borrower shall immediately on demand indemnify an Issuing Bank and hold harmless the Agents, each Lender, each Issuer, the Arrangers and their respective Affiliates, directors, officers, employees, agents, partners, trustees or advisors and other representatives (collectively the “Indemnitees”) from and against any costand all liabilities, loss obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or liability 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 (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant jurisdiction that Issuing Bank is material to the interest of the Lenders, and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) (otherwise than i) 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, (ii) any Revolving Credit Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by reason an 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 (iii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Liabilities arising out of the activities or operations of the Borrower, any Subsidiary or any other Loan Party, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (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”); provided that Issuing Bank's 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 wilful misconductwillful misconduct of such Indemnitee or of any affiliate, director, officer, employee or agent of such Indemnitee or (y) a material breach of any obligations under any Loan Document by such Indemnitee or of any Related Indemnified Person, in acting each case as determined by a final, non appealable judgment of a court of competent jurisdiction or any dispute solely among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an Issuing Bank administrative agent or arranger or any similar role under the Facility and other than any L/G requested by (or on behalf of) that Borrower.
(b) The obligations claims arising out of any act or omission of the Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations Affiliates. To the extent that the undertakings to indemnify and hold harmless set forth in this Section 12.4 may be unenforceable in whole or in part because they are violative of any applicable law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. 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 Clause 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 (without limitation whether before or after the 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). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 12.4 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal transactions contemplated hereunder or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any of the other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower Loan Documents is consummated. All amounts due under this Section 12.4 shall be entitled to reject payment otherwise due by it pursuant to paid within twenty (20) Business Days after written demand therefor. The agreements in this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.Section 12.4
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Indemnities. 9.1 Each of the Company and PLC jointly and severally agrees and undertakes to the Joint Sponsors to indemnify each Indemnified Person against all or any claims (whether or not successful, compromised or settled), actions, liabilities, demands, investigations, proceedings or judgments (each a CLAIM) asserted or established against that Indemnified Person in any jurisdiction by any person whatsoever and against all losses, costs, penalties, charges or expenses (including legal fees) and Taxes (other than corporation tax incurred by the Indemnified Person on its actual net income or profits arising in respect of fees paid to such Indemnified Person pursuant to any of the Engagement Letters) (each an EXPENSE) which that Indemnified Person may suffer or incur (including, but not limited to, all Expenses suffered or incurred in disputing any Claim and/or in establishing a right to be indemnified pursuant to this Clause 9.1 and/or in seeking advice regarding any Claim or in any way related to or in connection with this indemnity) if the Claim or Expense arises, directly or indirectly, under, out of, or is connected with anything done or omitted to be done by any person (including that Indemnified Person) in connection with the Restructuring, the Schemes or Admission or the arrangements contemplated by the Restructuring Agreement, the Schemes Document or the Prospectus or this Agreement, including but not limited to:
(a) the provision of the Joint Sponsors' services under this Agreement and the performance by the Joint Sponsors or any other Indemnified Person on their behalf of their obligations under this Agreement; and/or
(b) the Schemes Document or Listing Documents or any of them not containing, or being alleged not to contain or not fairly to present, all information required by law or regulation to be contained therein or any statement therein being or being alleged to be in any respect untrue, inaccurate, incomplete, misleading or not based on reasonable grounds; and/or
(c) the distribution, issue or approval in any jurisdiction of the Schemes Document or Listing Documents or any of them or other documents or materials in connection with the Schemes or Admission (including the issue or approval for the purpose of section 21 of the FSMA of any financial promotion); and/or
(d) any breach or alleged breach by the Company or PLC of any of their obligations (including the Warranties) in this Agreement or any other agreement to be entered into by the Company and/or PLC in connection with the Schemes, Admission or the arrangements contemplated by the Schemes Document, the Prospectus or this Agreement; and/or
(e) any failure or alleged failure by the Company or PLC or any of their respective agents, employees or advisers to comply with the FSMA, the Companies Act, the Listing Rules, the Rules or the Admission and Disclosure Standards or any other legal or regulatory requirements in any jurisdiction in relation to the Restructuring, the Schemes or the arrangements contemplated by the Schemes Document, the proposed listing of the Ordinary Shares, Notes and Warrants on the Official List of the UK Listing Authority and Admission to Trading on the London Stock Exchange; and/or
(f) the issue or distribution of cash, Ordinary Shares, Notes or Warrants pursuant to the Schemes or the Restructuring; and/or,
(g) in the case of PLC only, the PLC Shareholders Letter containing, or being alleged not to contain or not fairly to present, all information required by law or regulation to be contained therein or any statement therein being or being alleged to be in any respect untrue, inaccurate, incomplete, misleading or not based on reasonable grounds, provided that an Indemnified Person shall not be entitled to any indemnity under Clause 9.1(a) or (c) in relation to any Claim or Expense to the extent that the Claim or Expense concerned results primarily from (i) the negligence or wilful default of the relevant Indemnified Person or (ii) the negligent failure by that Indemnified Person to comply with its obligations under this Agreement in any material respect.
(a) Each Borrower Indemnified Person shall immediately on demand indemnify an Issuing Bank notify the Company (and, if relevant, PLC) as soon as reasonably practicable of any Claim asserted or established against it, and shall keep the Company (and, if relevant, PLC) reasonably informed of progress in respect of any costsuch Claim, loss including steps proposed to be taken to defend any related proceedings, and shall, to the extent reasonably practicable, consult with the Company (and, if relevant, PLC) as to any such Claim, proceedings or steps. Any failure to notify the Company (and, if relevant, PLC), to keep the Company (and, if relevant, PLC) informed or to consult with the Company (and, if relevant, PLC) as aforesaid shall not relieve the Company (or PLC) of any obligations under this Agreement and shall not relieve the Company (or PLC) from any other obligation or liability incurred by that Issuing Bank the Company (or PLC) may have to any Indemnified Person otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The obligations of any Borrower under this Clause will not be affected by any actCompany and PLC shall not, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or the prior written consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
Indemnified Person (iii) the takingsuch consent not to be unreasonably withheld or delayed), variationadmit any liability in respect of, settle, compromise, exchange, renewal or release of, or refusal or neglect consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance the entry of any formality judgment in or other requirement otherwise seek to terminate any pending or threatened Claim in respect of which any instrument Indemnified Person is or any failure could reasonably have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement or other action includes an unconditional release of such Indemnified Person from all liability in relation to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Claim.
(c) Neither Each Indemnified Person shall not, without the prior written consent of the Company nor and PLC (such consent not to be unreasonably withheld or delayed), admit liability in respect of, settle, compromise, consent to the entry of any Borrower judgement in or otherwise seek to terminate any pending or threatened Claim in respect of which indemnity or contribution will be sought hereunder.
9.3 The Company shall promptly notify the Joint Sponsors of any limitation, restriction or exclusion (whenever arising) on the extent to which the Company, PLC and/or any of their respective subsidiary undertakings or associates may claim against any third party or parties and/or of any waiver or release of any right of the Company, PLC or any of their subsidiary undertakings or associates to so claim (each a LIMITATION) in respect of anything which may arise, directly or indirectly, out of or is based upon or is in connection with the Schemes, Admission or the subject matter of the obligations or services to be performed under this Agreement or in connection with the Schemes or Admission by the Joint Sponsors or on their behalf. Without prejudice to the rights of any Indemnified Person under the other provisions of this Clause 9, where any damage or loss is suffered by the Company or PLC for which any Indemnified Person would otherwise be jointly and severally liable with any third party or third parties to the Company or PLC or any of their respective subsidiary undertakings or associates, the extent to which such loss will be recoverable from the Indemnified Person shall be limited so as to be in proportion to the contribution of the Indemnified Person to the overall fault for such damage or loss, as agreed between the parties, or, in the absence of agreement, as finally determined by a court of competent jurisdiction but, in any event, the Indemnified Person shall have no greater liability than if the Limitation did not apply.
9.4 The degree to which any Indemnified Person shall be entitled to reject payment otherwise due rely on the work of any adviser to the Company or PLC or any other third party will be unaffected by it any Limitation (as defined in Clause 9.3) which the Company or PLC may have agreed with the third party.
9.5 Each Indemnified Person will have the right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇, to enforce its rights against the Company under Clause 9, provided that, save to the extent notified in writing by Lazard to any Lazard Indemnified Person or by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Indemnified Person, Lazard and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (without obligation) will have the sole conduct of any action on behalf of any Lazard Indemnified Person or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Indemnified Person (as the case may be) indemnified pursuant to this Clause 9. The Joint Sponsors will have no responsibility to any person who is not a party to this Agreement on under or as a result of this Agreement. The consent of any person who is not a party to this Agreement shall not be required for the basis amendment or termination of the argument that an L/G with respect it.
9.6 Nothing in this Agreement shall be taken to which an Issuing Bank claims payment should not have been issued exclude or should not have been issued under its terms by that Issuing Bank pursuant restrict any duty or liability to the terms Company or PLC which the Joint Sponsors may have and which cannot be excluded under the FSMA or under the regulatory system.
9.7 Without prejudice to any other rights of this Agreement an Indemnified Person, the indemnity provided in Clause 9.1 shall not apply to any Expense or applicable law Claim to the extent that it (a) arises from the acquisition by such Indemnified Person of Ordinary Shares, Notes or regulationsWarrants or other securities or derivatives referenced to Ordinary Shares or (b) relates to the value of time spent by such Indemnified Person in connection with the defence of any Claim.
Appears in 2 contracts
Sources: Sponsors' Agreement (Marconi PLC), Sponsors' Agreement (Marconi Corp PLC)
Indemnities. (a) Each Borrower shall immediately on demand The Corporation hereby covenants and agrees to protect, indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice and hold harmless the Agent and/or any of its obligations respective affiliates and each of the directors, officers, employees, partners, counsel and agents of the Agent (hereinafter referred to as the "Personnel") harmless from and against any and all expenses, losses (other than loss of profits), claims, actions, damages or liabilities, whether joint or several (including the aggregate amount paid in reasonable settlement of any actions, suits, proceedings, or claims), and the reasonable fees and expenses of its counsel that may be incurred in advising with respect to and/or defending any claim that may be made against the Agent and/or Personnel, to which the Agent and/or the Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Corporation by the Agent and the Personnel hereunder or otherwise in connection with the matters referred to in this Clause (without limitation and whether or Agreement, provided, however, that this indemnity shall not known apply to it or any other person) includingthe extent that a court of competent jurisdiction in a final judgment that has become non-appealable shall determine that:
(i) the Agent and/or the Personnel have been grossly negligent or dishonest or have committed any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other personfraudulent act in the course of such performance;
(ii) the release of any other Obligor expenses, losses, claims, damages or any other person under liabilities, as to which indemnification is claimed, resulted from the terms of any composition gross negligence, dishonesty or arrangement with any creditor or any member of the Group;fraud referred to in (i); or
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or event that the Agent breaches any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms material provision of this Agreement or material applicable law law. The Corporation agrees that in case any legal proceeding shall be brought against the Corporation and/or the Agent by any governmental commission of regulatory authority or regulationsany stock exchange or other entity having regulatory authority, either domestic or foreign, and/or should the Corporation and/or the Agent and/or any Personnel of the Agent be investigated or required to testify in connection therewith or required to respond to procedures designed to discover information regarding or in connection with, or by reason of the performance of professional services rendered to the Corporation by the Agent, the Agent shall have the right to employ its own counsel in connection therewith, and other than the occurrence of any of the events itemized in (i), (ii) and (iii) above, the reasonable fees and expenses of such counsel as well as the reasonable costs (including an amount to reimburse the Agent for time spent by the Personnel in connection therewith) and out of pocket expenses incurred by the Personnel in connection therewith shall be paid by the Corporation as it occur. Promptly after receipt of notice of the commencement of any legal proceeding against the Agent or any of the Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly upon any matter in respect of which indemnification may be sought from the Corporation, the Agent will notify the Corporation in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Corporation, will keep the Corporation advised of the progress thereof and will discuss with the Corporation all significant actions proposed. No admission of liability and no settlement of any proceeding or claim shall be made without the consent of the Corporation and the Agent, such consent not to be unreasonably withheld. The indemnity and contribution obligations of the Corporation shall be in addition to any liability which the Corporation may otherwise have, shall extend upon the same terms and conditions to the Personnel of the Agent and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Corporation, the Agent and any of the Personnel of the Agent. The foregoing provisions shall survive the completion of professional services rendered under this Agreement.
Appears in 2 contracts
Sources: Agency Agreement (Searchlight Minerals Corp.), Agency Agreement (Searchlight Minerals Corp.)
Indemnities. (a) Each Borrower The Company agrees to, and shall immediately on demand cause each other Loan Party to, indemnify and hold harmless each Agent, each Arranger, each Lender and each Issuing Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article IX) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Payment Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Company shall not have any liability under this Section 14.17 to an Indemnitee with respect to any Indemnified Matter to the extent such liability has resulted from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder; provided, further, that the Company shall not be required to reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agent and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Collateral Agent, at the direction of the Administrative Agent, any Lender or any Issuing Lender, or any Agent, any Lender or any Issuing Lender having become the successor in interest to the Company or any of its Subsidiaries and (y) to the extent attributable to acts of the Agents, such Lender or such Issuing Lender or any agent on behalf of) that Borrowerof such Agent, such Lender or such Issuing Lender.
(b) The obligations Company shall, and shall cause each other Loan Party to, indemnify the Agents, the Lenders and each Issuing Lenders for, and hold the Agents, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company nor any Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and lead such defense, and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense; provided, however, that the fees and expenses of such counsel shall be entitled reasonable for a secondary counsel; provided, further, that the Company shall not be required to reject payment otherwise due reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agent and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Company’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 14.17) or any other Loan Document shall (i) survive Full Satisfaction of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Payment Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp)
Indemnities. (a) Each Borrower shall immediately on demand indemnify an Issuing Bank The Company hereby indemnifies and agrees to hold harmless each Noteholder and its officers, directors, employees and agents against and from any costand all suits, loss actions, proceedings, claims, damages, losses, liabilities and expenses (including reasonable attorneys' fees and expenses) which may be instituted or liability asserted against or incurred by that Issuing Bank such indemnified Person arising out of, in any way connected with, or as a consequence of any of the following:
(otherwise than i) the use of any proceeds of the Notes; or
(ii) this Agreement, any of the other Financing Documents, the performance by reason the parties hereto and thereto of that Issuing Bank's gross negligencetheir respective obligations hereunder and thereunder, bad faith and consummation of the transactions contemplated hereby and thereby; or
(iii) default in payment of the principal amount of the Notes or wilful misconductany part thereof or interest accrued thereon, or any other amount due in connection with any of the Financing Documents; or
(iv) in acting as an Issuing Bank the occurrence of any other Default or Event of Default under this Agreement; or
(v) any L/G requested by (claim, litigation, investigation or on behalf of) that Borrowerproceeding relating to any of the foregoing, whether or not such indemnified Person is a party thereto.
(b) The obligations of A certificate as to any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it additional amounts payable pursuant to this Agreement on Section 11.15 setting forth the basis and method of determining such amounts shall be conclusive, absent manifest error, as to the determination by such Noteholder or such other indemnified Person set forth therein if made reasonably and in good faith. The Company shall pay any amounts so certified to it by such Noteholder or such other indemnified Person within ten (10) days of receipt of any such certificate. The provisions of this Section 11.15 shall remain operative and in full force and effect regardless of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any or should not have been issued under its terms by that Issuing Bank pursuant to all of the terms Notes, the invalidity or unenforceability of any term of this Agreement or applicable law any of the other Financing Documents, or regulationsany investigation made by or on behalf of the Noteholders or any other indemnified Person.
Appears in 2 contracts
Sources: Senior Subordinated Note Purchase Agreement (New York Restaurant Group Inc), Senior Subordinated Note Purchase Agreement (Smith & Wollensky Restaurant Group Inc)
Indemnities. In the event of any registered offering of Ordinary Shares pursuant to this Section 2:
2.9.1 The Company will indemnify and hold harmless, to the fullest extent permitted by law, any Holder and any underwriter (aas defined in the Securities Act) Each Borrower shall immediately on demand indemnify for such Holder, and each person, if any, who controls (within the meaning of the Securities Act) the Holder or such underwriter, and directors, officers, employees and agents of any of them (each, an Issuing Bank “Indemnified Person”) from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs and expenses (otherwise than by reason of that Issuing Bank's gross negligenceincluding any amounts paid in any settlement effected with the Company’s consent) to which such Indemnified Person may become subject under applicable law or otherwise, bad faith or wilful misconduct) in acting insofar as an Issuing Bank under any L/G requested by such losses, damages, claims, liabilities (or on behalf of) that Borrower.
(b) The obligations actions or proceedings in respect thereof), costs or expenses arise out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon: (i) any timeuntrue statement or alleged untrue statement of any material fact contained, waiver on the effective date thereof, in the Registration Statement or consent granted toincluded in any preliminary prospectus or final prospectus contained therein, or composition with, any Obligor, any beneficiary under an L/G amendment or any other person;
supplement thereto; (ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading; or (iii) any other Obligor violation by the Company of the Securities Act, the Exchange Act or any state securities law or any rule or regulation thereunder in connection with the registration. The Company will reimburse each such Indemnified Person, promptly upon demand, for any reasonable legal or attorney’s fees or any other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable to any Indemnified Person in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished in writing by such Indemnified Person specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 2.8.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder, the underwriter or any controlling person of the Holder or the underwriter, and regardless of any sale in connection with such offering by the Holder. Such indemnity shall survive the transfer of securities by a Holder.
2.9.2 Each Holder participating in a registration hereunder will indemnify and hold harmless the Company, each other Holder participating in such registration, any underwriter (as defined in the Securities Act) for the Company, or for any such other Holder, and each person, if any, who controls (within the meaning of the Securities Act) the Company or such underwriter or such other Holder, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling shareholder’s consent) to which the Company or any such controlling person and/or any such underwriter and/or such other Holder may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on: (i) any untrue or alleged untrue statement of any material fact contained, on the effective date thereof, in any Registration Statement under which shares were registered under the terms Securities Act at the request of such Holder, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto; or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and each such Holder will reimburse the Company, each other Holder participating in such registration, any underwriter and each such controlling person of the Company or any underwriter, promptly upon demand, for any reasonable legal or attorney’s fees or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by such Holder specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 2.9.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or arrangement action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
2.9.3 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 2.9.1 or 2.9.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 2.9.1 or 2.9.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party and the indemnifying party and there is or is reasonably expected to be a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 2.9.1 or 2.9.2 for any member legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the Group;
preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and as soon as practicable and within fifteen (15) days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
2.9.4 If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses in such proportion as is appropriate to reflect the basis relative fault of each of the argument indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that an L/G resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by that Issuing Bank such Holder.
2.9.5 Notwithstanding anything to the contrary hereunder, no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution pursuant to the terms this Section 2.9 from any person or entity who was not guilty of this Agreement or applicable law or regulationssuch fraudulent misrepresentation.
Appears in 2 contracts
Sources: Shareholders' Agreement (Endurance Acquisition Corp.), Registration Rights Agreement (Endurance Acquisition Corp.)
Indemnities. (a) Each Borrower shall immediately The Company agrees to indemnify and hold harmless each Agent, Arranger, Lender, Issuer (including each Person obligated on demand indemnify a Hedging Contract that is a Loan Document if such Person was a Lender or Issuer at the time of it entered into such Hedging Contract) and Co-Documentation Agent, the Syndication Agent and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions to Loans and Letters of Credit) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, any Disclosure Document, any Related Document, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Borrowers shall not have any liability under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter that has resulted primarily from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or migrating from such property, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien on Real Property or any asset owned or leased by the Company or any of its Subsidiaries and (iv) any costs or liabilities concerning the Company or any of its Subsidiaries, including their operations and owned or leased Real Property, incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Company or any of its Subsidiaries and (y) to the extent attributable solely to acts or omissions of the Administrative Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Administrative Agent, such Lender or such Issuer or any other Indemnitee.
(b) The obligations Company shall indemnify each Agent, Arranger, Lender, Issuer, Co-Documentation Agent and Syndication Agent for, and hold such Agent, Arranger, Lender, Issuer, Co-Documentation Agent and Syndication Agent harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Arrangers, the Lenders, the Issuers, the Co-Documentation Agents and the Syndication Agent for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company nor to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense. No action taken by legal counsel chosen by such Indemnitee in defending against any Borrower such investigation, litigation or proceeding or requested Remedial Action, shall be entitled vitiate or in any way impair the Company’s obligation and duty hereunder to reject payment otherwise due by it indemnify and hold harmless such Indemnitee.
(d) The Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Marquee Holdings Inc.), Credit Agreement (Amc Entertainment Inc)
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless each Agent, each Arranger, each Lender, each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Section 4 (Conditions Precedent)) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Revolving Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not have any liability under this Section 10.4 to an Issuing Bank against Indemnitee with respect to any costIndemnified Matter that has resulted from the gross negligence or willful misconduct of such Indemnitee or the breach by such Indemnitee of its obligations under this Agreement, loss as determined by a court of competent jurisdiction in a final non-appealable judgment or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerorder.
(b) The obligations Borrower shall indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold the Agents, the Arrangers, the Lenders and the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Arrangers, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under the Borrower’s Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding, in each case contemplated in clause (a) above, and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such indemnitee requests the Borrower to defend against such investigation, litigation or proceeding, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 10.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP), Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. (a) Each Borrower shall immediately on demand indemnify agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender and each of their respective Related Persons (each such Person being an Issuing Bank “Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Disclosure Document, any Obligation (or the repayment thereof), the use or intended use of the proceeds of any Loan, or any securities filing of, or with respect to, any Group Member, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will Group Member or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not be affected brought by any act, omission, matter such Indemnitee or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause Related Persons, any holders of Securities or creditors (without limitation and including attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not known to it based on any securities or commercial law or regulation or any other person) including:
(i) any timeRequirement of Law or theory thereof, waiver including common law, equity, contract, tort or consent granted tootherwise, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity other act, event or lack transaction related, contemplated in or attendant to any of powerthe foregoing (collectively, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company“Indemnified Matters”); provided, any L/G or any other document or security;
(vi) any unenforceabilityhowever, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any that no Borrower shall be entitled have any liability under this Section 11.4 to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G any Indemnitee with respect to which an Issuing Bank claims payment should not any Indemnified Matter, and no Indemnitee shall have been issued or should not have been issued under its terms by that Issuing Bank pursuant any liability with respect to any Indemnified Matter other than (to the terms extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of this Agreement such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or applicable law order. Furthermore, each of Holdings and each Borrower waives and agrees not to assert against any Indemnitee, and shall cause each other Loan Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or regulationsasserted against any Related Person.
Appears in 2 contracts
Sources: Credit Agreement (Rush Enterprises Inc \Tx\), Credit Agreement (Rush Enterprises Inc \Tx\)
Indemnities. (a) Each Borrower shall immediately on demand agrees, jointly and severally, to indemnify and hold harmless each Agent, each Arranger, each Lender, each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Section 4 (Conditions Precedent)) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by that Issuing Bank (otherwise than or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by reason any such Indemnitee or any of that Issuing Bank's gross negligenceits directors, bad faith security holders or wilful misconduct) creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in acting as an Issuing Bank under any L/G requested by (equity, or on behalf of) contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Borrowerthe Borrowers shall not have any liability under this Section 10.4 to an Indemnitee with respect to any Indemnified Matter that has resulted from the gross negligence or willful misconduct of such Indemnitee or the breach by such Indemnitee of its obligations under this Agreement, as determined by a court of competent jurisdiction in a final non-appealable judgment or order.
(b) The obligations Each Borrower shall jointly and severally indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold the Agents, the Arrangers, the Lenders and the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Arrangers, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under the Parent Borrower’s Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither Each Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding, in each case contemplated in clause (a) above, and each Borrower, in any event, may participate in the defense thereof with legal counsel of such Borrower’s choice. In the event that such indemnitee requests such Borrower to defend against such investigation, litigation or proceeding, such Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding shall vitiate or in any way impair the Borrowers’ obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) Each Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 10.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP), Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. (a) Each Borrower shall immediately on demand indemnify an Issuing Bank indemnify, hold harmless and defend Lender and its successors and assigns against any costand all claims, loss demands, suits and legal proceedings, whether civil, criminal, administrative, investigative or otherwise, including arbitration, mediation, bankruptcy and appeal and including any claims, demands, suits and legal proceedings arising out of: (i) the actual or alleged manufacture, purchase, ordering, financing, shipment, acceptance or rejection, titling, registration, leasing, ownership, delivery, rejection, non-delivery, possession, use, transportation, storage, operation, maintenance, repair, return or disposition of the Equipment; (ii) patent, trademark or copyright infringement; or (iii) any alleged or actual breach, default or Event of Default by Borrower (all of the foregoing hereinafter collectively referred to as “Actions”); and (iv) any and all penalties, losses, liabilities, including the liability of Borrower or Lender for negligence, tort, strict liability or environmental liability, damages, costs, court costs and any and all other expenses, including Attorneys’ Fees, judgments and amounts paid in settlement, incurred incident to, arising out of, or in any way connected with any Actions, any Agreement, any Equipment, or any other instrument, document or agreement executed in connection with or contemplated by any of the foregoing; provided that Issuing Bank (otherwise than by reason the Borrower shall have no obligation hereunder to Lender or any of its affiliates or related to the extent that Issuing Bank's such obligation for indemnification shall have resulted from the gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (willful misconduct of the party to be indemnified or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations affiliates as determined by a final non-appealable judgment of a court of competent jurisdiction. The term “Attorneys’ Fees” as used herein shall include any and all reasonable and documented attorneys’ fees that are incurred by Lender incident to, arising out of, or in any way in connection with Lender’s interests in, or defense of, any Action or Lender’s enforcement of its rights and interests with respect to any Equipment or otherwise under this Clause (without limitation each Agreement, or any other instrument, document or agreement executed in connection with or contemplated by any of the foregoing, which shall include such reasonable and documented attorneys’ fees incurred by Lender whether or not known to it a suit or action is commenced, and all costs in collection of sums due during any other person) including:
(i) any time, waiver work out or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued settlement negotiations, or should not have been issued under the cost to defend Lender or to enforce any of its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsrights.
Appears in 2 contracts
Sources: Master Equipment Finance Agreement (Stronghold Digital Mining, Inc.), Master Equipment Finance Agreement (Stronghold Digital Mining, Inc.)
Indemnities. The Borrower hereby indemnifies and agrees to hold harmless the Bank and its officers, directors, employees and agents against and from any and all suits, actions, proceedings, claims, damages, losses, liabilities and expenses (including reasonable attorneys' fees and expenses) which may be instituted or asserted against or incurred by such indemnified Person arising out of, in any way connected with, or as a consequence of any of the following:
(a) Each Borrower shall immediately on demand indemnify an Issuing Bank against the use of any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason proceeds of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.of the Loans; or
(b) The this Agreement, any of the other Loan Documents, the performance by the parties hereto and thereto of their respective obligations hereunder and thereunder, and consummation of the transactions contemplated hereby and thereby; or
(c) default in payment of the principal amount of any Borrower Loan or any part thereof or interest accrued thereon, or any other amount due in connection with any of the Loan Documents; or
(d) the occurrence of any other Default or Event of Default under this Clause will not be affected by Agreement; or
(e) any actclaim, omissionlitigation, matter investigation or thing which, but for this Clause, would reduce, release or prejudice proceeding relating to any of its obligations under this Clause (without limitation and the foregoing, whether or not known such indemnified Person is a party thereto; or
(f) the failure of the Borrower to it borrow a LIBOR Loan after agreement shall have been reached on the amount, interest rate, and the Interest Period thereof; or
(g) the receipt or recovery by the Bank, whether by voluntary prepayment, acceleration or otherwise, of all or any other personpart of a LIBOR Loan or a Fixed Rate Loan prior to the last day of an Interest Period or Maturity Date, as the case may be, applicable thereto; or
(h) including:
the conversion, prior to the last day of an applicable Interest Period, of a LIBOR Loan to a Prime Loan or a Fixed Rate Loan. Without limiting the effect of the foregoing, the amount to be paid by the Borrower to the Bank in order to indemnify the Bank for any loss occasioned by any of the events described in the preceding clauses (f), (g) and (h), and as liquidated damages therefor (and regardless of whether same are reasonable), shall be equal to the excess, discounted to its present value as of the date so received or recovered by the Bank, of (i) any timethe amount of interest which otherwise would have accrued on the principal amount so received or recovered at the rate of interest applicable to the principal amount of the Loan (prior to default) during the period (the "Indemnity Period") which shall commence on the date of such receipt or recovery (the "Commencement Date"), waiver and shall end, as to the whole or consent granted toeach part of the principal amount so received or recovered, on the date or composition with, any Obligor, any beneficiary under an L/G or any other person;
dates determined by applying such amount to the last maturing installments thereof in inverse order of their respective maturities over (ii) the release amount of any other Obligor interest which would be earned by the Bank during the Indemnity Period if it invested the whole or any other person under the terms of any composition or arrangement with any creditor or any member each part of the Group;
principal amount so received or recovered (iiias the case may be) on the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise Commencement Date at the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change rate per annum determined by the Bank as the rate it would bid in the members London interbank market for a deposit of Eurodollars in an amount approximately equal to such principal amount (or status part thereof) for a period of an Obligor or time comparable to the Indemnity Period. A certificate as to any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it additional amounts payable pursuant to this Agreement on Section setting forth the basis and method of determining such amounts shall be conclusive, absent manifest error, as to the determination by the Bank or such other indemnified Person set forth therein if made reasonably and in good faith. The Borrower shall pay any amounts so certified to it by the Bank or such other indemnified Person within ten (10) days of receipt of any such certificate. The provisions of this Section 2.12 shall remain operative and in full force and effect regardless of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any or should not have been issued under its terms by that Issuing Bank pursuant to all of the terms Obligations, the invalidity or unenforceability of any term of this Agreement or applicable law any of the other Loan Documents, or regulationsany investigation made by or on behalf of the Bank or any other indemnified Person.
Appears in 2 contracts
Sources: Loan Agreement (New York Restaurant Group Inc), Loan Agreement (Smith & Wollensky Restaurant Group Inc)
Indemnities. Notwithstanding any other provision of this Agreement, the Seller shall (so far as possible by way of adjustment to the consideration for the sale of the Sale Shares) on demand indemnify in full and hold harmless the Buyer and each other Indemnified Person against, and covenants to pay to the Buyer and each other Indemnified Person an amount equal to, all Losses suffered or incurred by the Buyer or any other Indemnified Person arising, directly or indirectly, out of or in connection with any of the following matters:
11.11.1 any title defect with respect to any of the Sale Shares or any shares or participation interests in any Subsidiary (including any Encumbrance over the Sale Shares or over any shares or participation interests in any of the Subsidiaries), as the result of or in connection with any event, fact, circumstance, or action taking place prior to the Completion Date, inter alia, as the result of or in connection with:
(a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank failure to obtain spousal consents in connection with any acquisition of shares (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconductparticipation interests) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.of the Group Companies;
(b) The obligations any failure to obtain necessary corporate approvals in connection with any acquisition or transfer of shares (participation interests) in any Borrower under this Clause will of the Group Companies;
(c) any failure to comply with the pre-emptive rights in connection with any acquisition or transfer of shares (participation interests) in any of the Group Companies;
(d) the acquisition of the Sale Shares by the Seller or any acquisitions of shares (participation interests) in Group Companies not be affected having been validly carried out in accordance with Applicable Laws and Organisational Documents of Group Companies;
(e) any aspect of formation or reorganisation of a Group Company not having been validly carried out in accordance with Applicable Laws; and/or
(f) any aspect of the issue of Sale Shares or any shares or participation interests issues by any actGroup Company not having been validly carried out in accordance with the Applicable Laws, omissionin each case, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause prior to Completion (without limitation and whether or not known to it or any other person) including:“Title Indemnity”);
11.11.2 (i) any timefailure to carry out the Restructuring in accordance with the agreed plan of the Restructuring set out in Error! Reference source not found. (Restructuring), waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
and/or (ii) any Third Party Claims in connection with the release Restructuring, including where they arise out of a failure to comply with Applicable Law (“Restructuring Indemnity”);
11.11.3 any other Obligor loss of the Intellectual Property Rights in Rutaxi Platform, whether in whole or any other person under in part, as the terms result of any composition or arrangement in connection with any creditor event, fact, circumstance, or any member action taking place prior to the Completion Date, including as the result of the GroupRestructuring (the “IP Indemnity”);
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, 11.11.4 any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement claim in respect of any instrument or any failure to realise the full value an unlawful use of any security;
(iv) rights in any incapacity or lack of power, authority or legal personality computer software against any Group Company as the result of or dissolution in connection with any event, fact, circumstance, or change action taking place prior to the Integration Completion Date (the “IT Licences Indemnity”); provided, however, that if prior to Completion the Seller procures that the Group Companies acquire the Agreed Software Licences pursuant to Clause 17.10.1, such IT Licences Indemnity shall only apply to any claim in the members or status respect of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity unlawful use of any obligation rights in any computer software against any Group Company as the result of or in connection with any person under any Finance Documentevent, any L/G fact, circumstance, or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant action taking place prior to the terms of this Agreement or applicable law or regulations.Completion Date,
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Shares (Yandex N.V.), Agreement for the Sale and Purchase of the Issued Share Capital (Yandex N.V.)
Indemnities. (a) Each Borrower The Borrowers shall immediately on demand indemnify an the Administrative Agent, the Collateral Agent, the Lead Arranger, the Documentation Agent, the Syndication Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, on an after-Tax basis, any and all losses, claims, damages, penalties, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any costIndemnitee arising out of, loss in connection with, or liability incurred as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by that Issuing Bank (otherwise than by reason the parties hereto of that Issuing Bank's gross negligence, bad faith their respective obligations thereunder or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations the consummation of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it the Transactions or any other person) including:
(i) any timetransactions contemplated hereby, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) any Loan or Letter of Credit or the release use of the proceeds therefrom (including any other Obligor or any other person refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of any composition or arrangement with any creditor or any member such Letter of the Group;
Credit), (iii) the takinghandling of the Funding Accounts, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforceCollection Account, any rights againstaccount subject to a Blocked Account Agreement and Collateral of Borrowers as herein provided, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) the Agent, Issuing Bank or Lender relying on any incapacity or lack instructions of powerthe Administrative Borrower, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) actual or replacement alleged presence or release of a Finance Document consented to Hazardous Materials on or from any property owned or operated by the Company, any L/G Borrowers or any other document of their Subsidiaries, or security;
any Environmental Liability related in any way to the Borrowers or any of their Subsidiaries, or (vi) any unenforceabilityactual or prospective claim, illegality litigation, investigation or invalidity proceeding relating to any of any obligation of any person under any Finance Documentthe foregoing, any L/G whether based on contract, tort or any other document or securitytheory and regardless of whether any Indemnitee is a party thereto; or
(vii) provided that such indemnity shall not, as to any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall Indemnitee, be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant available to the terms extent that such losses, claims, damages, penalties, liabilities or related expenses are finally determined by a court of this Agreement competent jurisdiction to have resulted from the gross negligence or applicable law willful misconduct of such Indemnitee in a final nonappealable order or regulationsjudgment.
Appears in 2 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Indemnities. (a) Each Lender hereby agrees to indemnify and hold harmless Borrower shall immediately on demand indemnify an Issuing Bank and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any costand all liabilities, loss judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and expenses (including, without limitation, any losses relating to Borrower’s market activities as a consequence of becoming, or liability of the risk of becoming, subject to Section 16(b) of the Exchange Act, including, without limitation, any forbearance from market activities or cessation of market activities and any losses in connection therewith) incurred or suffered by that Issuing Bank (otherwise than any such person or entity directly or indirectly arising from, by reason of, or in connection with, (i) any breach by Lender of that Issuing Bank's gross negligence, bad faith any of its representations or wilful misconductwarranties contained in Section 7 or (ii) any breach by Lender of any of its covenants or agreements in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The Borrower hereby agrees to indemnify and hold harmless Lender and its affiliates and its former, present and future directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations of any Borrower under this Clause will not be affected and expenses, incurred or suffered by any actsuch person or entity directly or indirectly arising from, omissionby reason of, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
in connection with (i) any time, waiver breach by Borrower of any of its representations or consent granted to, warranties contained in Section 7 or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release any breach by Borrower of any other Obligor of its covenants or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement agreements in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthis Agreement.
(c) Neither In case any claim or litigation which might give rise to any obligation of a party under this Section 12 (each an “Indemnifying Party”) shall come to the Company nor any Borrower attention of the party seeking indemnification hereunder (the “Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of the existence and amount thereof; provided that the failure of the Indemnified Party to give such notice shall not adversely affect the right of the Indemnified Party to indemnification under this Agreement, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly notify the Indemnified Party in writing if it accepts such claim or litigation as being within its indemnification obligations under this Section 12. Such response shall be delivered no later than 30 days after the initial notification from the Indemnified Party; provided that, if the Indemnifying Party reasonably cannot respond to such notice within 30 days, the Indemnifying Party shall respond to the Indemnified Party as soon thereafter as reasonably possible.
(d) An Indemnifying Party shall be entitled to reject payment otherwise due by it pursuant to this Agreement on participate in and, if (i) in the basis judgment of the argument Indemnified Party such claim can properly be resolved by money damages alone and the Indemnifying Party has the financial resources to pay such damages and (ii) the Indemnifying Party admits that an L/G with respect this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to which an Issuing Bank claims payment should not have been issued or should not have been issued under direct the defense of any claim at its terms expense, but such defense shall be conducted by that Issuing Bank pursuant legal counsel reasonably satisfactory to the terms Indemnified Party. An Indemnified Party shall not make any settlement of any claim or litigation under this Agreement or applicable law or regulationsSection 12 without the written consent of the Indemnifying Party.
Appears in 2 contracts
Sources: Share Lending Agreement, Share Lending Agreement (Standard Pacific Corp /De/)
Indemnities. (a) Each Borrower shall immediately The Borrowers agree to indemnify and hold harmless each Agent, Arranger, Lender and Issuer (including each Person obligated on demand indemnify a Hedging Contract that is a Loan Document if such Person was a Lender or Issuer at the time of it entered into such Hedging Contract) and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Loans And Letters Of Credit) (each such Person being an Issuing Bank "Indemnitee")) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state, provincial, local or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, any Disclosure Document, any Related Document, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or 123 Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the "Indemnified Matters"); provided, however, that Issuing Bank (otherwise than by reason the Borrowers shall not have any liability under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter to the extent that such liability has resulted primarily from the gross negligence or willful misconduct of that Issuing BankIndemnitee or from any material breach of any of such Indemnitee's gross negligenceobligations under the Loan Documents to which it is a party, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, "Indemnified Matters" include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. Section 9601 et seq.) and applicable state, provincial or other property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Company or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Administrative Agent, such Lender or such Issuer.
(b) The obligations Borrowers shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company's choice. In the event that such Indemnitee requests the Company nor to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense. No action taken by legal counsel chosen by such Indemnitee in defending against any Borrower such investigation, litigation or proceeding or requested Remedial Action, shall be entitled vitiate or in any way impair any Borrower's obligation and duty hereunder to reject payment otherwise due by it indemnify and hold harmless such Indemnitee.
(d) The Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive the terms termination of this Agreement or applicable law payment in 124 full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Indemnities. (a) Each Borrower shall immediately on demand The Parent and the Borrowers jointly and severally agree to and hereby do indemnify and hold harmless each Administrative Agent, the Collateral Agent, Arrangers, Issuers, and Lender (together with their respective Affiliates (and controlling persons) and the respective officers, directors, employees, agents, members (and successors and assigns) of each of the foregoing, each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including reasonable, documented and customary fees, disbursements and expenses of financial and legal advisors to any such Indemnitee, provided that legal advisors shall be limited to the reasonable and documented fees, disbursements and expenses of (x) one firm of counsel for each Agent, one firm of counsel for the Term Lenders and one firm of counsel for the Issuers, (y) one firm of local counsel in each relevant jurisdiction, and (z) in the case of an actual or perceived conflict of interest where the person affected by such conflict retains its own counsel, of another firm of counsel for such affected person in each relevant jurisdiction) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrowers or any of its Affiliates, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank the Borrowers shall not have any obligation under this Section 11.4 to an Indemnitee with respect to (otherwise than i) any Indemnified Matter caused by reason of that Issuing Bank's or resulting from the gross negligence, bad faith or wilful misconductwillful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order or order of an arbitral tribunal, (ii) a material breach of the Loan Documents by such Indemnitee, as determined by a court of competent jurisdiction in acting a final non-appealable judgment or order or order of an arbitral tribunal and (iii) any action brought by one Indemnitee against another Indemnitee (except in its capacity as an Issuing Bank Agent) which does not involve an act or omission by the Parent or any of its Affiliates or (iv) any settlement entered into by such Indemnitee without the Parent’s written consent (such consent not to be unreasonably withheld, conditioned or delayed); provided that the foregoing indemnity will apply to any such settlement in the event that the Parent was offered the ability to assume the defense of the action that was the subject matter of such settlement and elected not to so assume; provided, further, that if there is a final and non-appealable judgment by a court of competent jurisdiction, the Parent agrees to indemnify and hold harmless each Indemnitee 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 11.4. Without limiting the foregoing, but subject to the express limitations of the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Parent, the Borrowers, or any of their respective Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Parent, the Borrowers, or any of their respective Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Parent or any of its Subsidiaries, or the owner, lessee or operator of any property of the Parent or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure (or deed in lieu thereof) by any Administrative Agent, any Lender or any Issuer, or any Administrative Agent, the Collateral Agent, any Lender or any Issuer having become the successor in interest to the Parent, the Borrowers, or any of their respective Subsidiaries and (y) attributable solely to acts of such Administrative Agent, such Lender or such Issuer or any agent on behalf ofof such Administrative Agent, such Lender or such Issuer. This Section 11.4(a) shall not apply with respect to Taxes other than any Taxes that Borrowerrepresent losses or damages arising from any non-Tax claim.
(b) The obligations Parent and each Borrower shall and does hereby jointly and severally indemnify each Agent, each Lender and each Issuer for, and hold each Agent, each Lender and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, any Lender and any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither Promptly after receipt by an Indemnitee of service of any complaint or the Company nor commencement of any action or proceeding with respect to an Indemnified Matter, such Indemnitee will notify the Parent in writing of such complaint or of the commencement of such action or proceeding, but failure to so notify the Parent will relieve the Parent or the Borrowers from the obligation to indemnify such Indemnitee only if and only to the extent that such failure results in the forfeiture by the Parent or the Borrowers of substantial rights and defenses that actually and materially prejudice the Parent or the Borrowers, and will not in any event relieve the Parent or the Borrowers from any other obligation or liability that the Parent or the Borrowers may have to any Indemnitee otherwise than in accordance with the provisions hereof. If the Parent or any Borrower shall so elects following its acknowledgment of its obligation to indemnify the Indemnitee, or if requested by such Indemnitee, the Parent or such Borrower will assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to such Indemnitee and the payment of the fees and disbursements of such counsel. In the event, however, such Indemnitee reasonably determines in its judgment that having common counsel would present such counsel with a conflict of interest or if the defendants in or targets of any such action or proceeding include an Indemnitee and the Parent or the Borrowers and such Indemnitee reasonably concludes that there may be entitled legal defenses available to reject payment otherwise due by it or other Indemnitees that are different from or in addition to those available to the Parent or the Borrowers, or if the Parent or the Borrowers fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Indemnitee in a timely manner, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Parent and the Borrowers will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the Parent and the Borrowers will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for such Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Parent or the Borrowers assume, the Indemnitee will have the right to participate in such litigation and to retain its own counsel at such Indemnitee’s own expense.
(d) The Parent and the Borrowers jointly and severally agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive the terms termination of this Agreement and the payment in full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (McDermott International Inc), Superpriority Senior Secured Credit Agreement (McDermott International Inc)
Indemnities. (a) Each Borrower shall immediately on demand Without limiting any other rights that Recco may have hereunder or under applicable law, the Seller hereby agrees to indemnify an Issuing Bank Recco, its directors, employees, officers, successors and assigns (collectively, the "Indemnified Parties") from and against any costand all damages, loss losses, claims, liabilities and related costs and expenses, including all attorneys' fees and disbursements (all of the foregoing being collectively referred to as the "Indemnified Amounts"), awarded against or liability incurred by that Issuing Bank (otherwise than by reason any of that Issuing Bankthem arising out of or as a result of this Agreement, the Operative Documents or Recco's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations ownership of any Borrower under Purchased Contracts, excluding, however, recourse (except as otherwise specifically provided in this Clause will not be affected by any actAgreement) for uncollectible Purchased Contracts. Without limiting the generality of the foregoing, omission, matter the Seller shall indemnify the Indemnified Parties for all Indemnified Amounts relating to or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) includingresulting from:
(i) the transfer of an interest in any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under Contract other than an L/G or any other personEligible Contract;
(ii) reliance on any representation or warranty made by the release of any other Obligor Seller (or any other person under of its Responsible Officers) or the terms of any composition or arrangement with any creditor Servicer (or any member of its Responsible Officers), if the Seller or any Affiliate of the GroupSeller is acting as the Servicer, under or in connection with the Operative Documents, and any information or report delivered by the Seller or the Servicer pursuant hereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the taking, variation, compromise, exchange, renewal failure by the Seller or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person the Servicer (if the Servicer is the Seller or any non-presentation Affiliate of the Seller) to comply with any applicable law, rule or non-observance regulation with respect to any Purchased Contract or the nonconformity of any formality Purchased Contract with any such applicable law, rule or other requirement in respect of any instrument or any failure to realise the full value of any securityregulation;
(iv) the failure to vest and maintain vested in Recco or to transfer to Recco, legal and equitable title to and ownership of, the Contracts that are, or are intended to be, Purchased Contracts, together with all proceeds thereof, including, without limitation, all Collections and other items that constitute proceeds, free and clear of any incapacity Lien whether existing at the time of the Purchase of such Contract or lack of powerat any time thereafter, authority or legal personality of the failure to perfect, or dissolution or change in to maintain the members or status of an Obligor or Lien on any beneficiary under an L/G or any other personVehicle subject to a Purchased Contract;
(v) the failure to file, in a timely manner, financing statements or other similar instruments or documents required under the UCC in effect in the state in which the Seller is organized or the Seller's principal place of business or chief executive office is located or the location of the Collateral as required under such law or other applicable laws with respect to any amendment (however fundamental) Contracts sold to Recco, whether at the time of any Purchase or replacement of a Finance Document consented to by the Company, at any L/G or any other document or securitysubsequent time;
(vi) any unenforceabilitydefense, illegality setoff, counterclaim, recoupment or invalidity reduction of liability whatsoever under any Purchased Contract, arising out of a breach by the Seller of any obligation under such Purchased Contract or arising out of any person under other agreement, indebtedness or liability at any Finance Document, any L/G time owing to or in favor of any other document or security; orPerson from the Seller (it being understood that all such obligations of the Seller shall be and remain enforceable against and only against the Seller and shall not be enforceable against Recco);
(vii) any insolvency failure of the Seller or the Servicer (if the Servicer is the Seller or any Affiliate of the Seller) to perform its duties or obligations in accordance with the provisions of this Agreement;
(viii) any products liability claim or personal injury or property damage suit or other similar proceedingsor related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Purchased Contract or any Vehicle;
(ix) the failure by the Seller or the Servicer (if the Servicer is the Seller or any Affiliate of the Seller) to pay when due any taxes payable by it, including without limitation, franchise taxes and sales, excise, transfer or personal property taxes payable in connection with the Contracts or the sale thereof;
(x) the failure by the Seller or the Servicer (if the Servicer is the Seller or an Affiliate of the Seller) to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction;
(xi) the commingling of Collections at any time with other funds; and
(xii) the failure of any Lock-Box Bank or the Clearing Account Bank to remit any amounts held in its Lock-Box or in the Clearing Account as the case may be whether by reason of the exercise of setoff rights or otherwise. Notwithstanding the foregoing, Recco hereby agrees that under no circumstances shall the Seller be liable for, or required to pay any Indemnified Amount, other than as set forth in Section 4.5, resulting from, (i) the credit risk of an Obligor, or for which payment therefor would otherwise constitute recourse to the Seller for an uncollectible Contract or Contracts (except to the extent made uncollectible by acts or omissions of the Seller or, if the Servicer is the Seller or an Affiliate thereof, the Servicer) or (ii) gross negligence or willful misconduct on the part of the Indemnified Party to which such Indemnified Amount would otherwise be due.
(cb) Neither the Company nor any Borrower Any Indemnified Amount due hereunder shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationspayable 15 days after demand.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Onyx Acceptance Corp), Sale and Servicing Agreement (Onyx Acceptance Corp)
Indemnities. In the event of any registered offering of Registrable Securities pursuant to this Section 2 or Section 3:
2.8.1 The Company will indemnify and hold harmless, to the fullest extent permitted by law, each Holder, any underwriter of such Holder, each person, if any, who controls the Holder or such underwriter and each of the foregoing person’s respective officers, directors, employees, partners, members, attorneys, advisors, agents or other representatives (a) Each Borrower shall immediately on demand indemnify an Issuing Bank a “Holder Indemnified Party”), from and against any costand all losses, loss damages, claims, liabilities, joint or liability several, costs and expenses (including any amounts paid in any settlement effected with the Company’s consent) to which any such Holder Indemnified Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or included in the prospectus, as amended or supplemented (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they are made, not misleading and the Company will reimburse such Holder Indemnified Party promptly upon demand, for any reasonable documented, out-of-pocket legal or any other expenses incurred by that Issuing Bank them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding or (otherwise than iii) any violation of alleged violation by reason the Company of that Issuing Bank's gross negligencethe Securities Act, bad faith the Exchange Act or wilful misconduct) any state securities law or any rule or regulation thereunder, in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any connection with the performance of its obligations under this Clause (Agreement; provided that the Company will not be liable to any Holder Indemnified Party in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Holder Indemnified Party claiming for indemnification in writing specifically for inclusion therein; provided, further, that the indemnity agreement contained in this subsection 2.8.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without limitation the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and whether effect regardless of any investigation made by or not known on behalf of the Holder Indemnified Party and regardless of any sale in connection with such offering by the Holder Indemnified Party. Such indemnity shall survive the transfer of securities by a selling shareholder.
2.8.2 Each Holder participating in a registration hereunder will furnish to it the Company in writing any information regarding such Holder and his or her intended method of distribution of Registrable Securities as the Company may reasonably request and will indemnify and hold harmless the Company, any underwriter for the Company, any other person participating in the distribution, each person, if any, who controls the Company, such underwriter or such other person and each of the foregoing person’s respective officers, directors, employees, partners, members, attorneys, advisors, agents or other representatives (a “Company Indemnified Party”) including:
from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling shareholder’s consent) to which any such Company Indemnified Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on (i) any timeuntrue or alleged untrue statement of any material fact contained in the Registration Statement or included in the prospectus, waiver as amended or consent granted tosupplemented, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, but, in each case, only to the extent of such information relating to such Holder and provided in writing by such Holder, and each such Holder will reimburse such Company Indemnified Party promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity agreement shall be individual and several by each Holder. The indemnity agreement contained in this subsection 2.8.2 shall not apply to amounts paid in settlement of any other Obligor such claim, loss, damage, liability or action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
2.8.3 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 2.8.1 or 2.8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 2.8.1 or 2.8.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other person under indemnifying party similarly notified, to assume the terms defense thereof with counsel reasonably satisfactory to such indemnified party; provided that if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party reasonably believes that there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 2.8.1 or 2.8.2 for any composition legal or arrangement other expense subsequently incurred by such indemnified party in connection with any creditor or any member the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the Group;
preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement if such settlement or judgment requires an admission of fault or culpability on the part of the indemnified party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
2.8.4 If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses in such proportion as is appropriate to reflect the basis relative fault of each of the argument indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that an L/G resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the parties’ relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by that Issuing Bank such Holder.
2.8.5 Notwithstanding anything to the contrary hereunder, no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to the terms this Section 2.8 from any person or entity who was not guilty of this Agreement or applicable law or regulationssuch fraudulent misrepresentation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (REE Automotive Ltd.), Investors’ Rights Agreement (REE Automotive Ltd.)
Indemnities. (a) Each Borrower shall immediately on demand In the event of any registered offering of Ordinary Shares pursuant to this Agreement:
6.1 The Company will indemnify an Issuing Bank and hold harmless, to the fullest extent permitted by law, the Holder, the officers and directors of the Holder and any underwriter for the Holder, and each person, if any, who controls the Holder or such underwriter, from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, costs, and expenses (otherwise than by reason including any amounts paid in any settlement effected with the Company's consent) to which the Holder or any such officers and directors of that Issuing Bank's gross negligencethe Holder, bad faith underwriter or wilful misconduct) in acting controlling person may become subject under applicable law or otherwise, insofar as an Issuing Bank under any L/G requested by such losses, damages, claims, liabilities (or on behalf of) that Borrower.
(b) The obligations actions or proceedings in respect thereof), costs, or expenses arise out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon (i) any timeuntrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, waiver as amended or consent granted tosupplemented, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or alleged omission to state therein a material fact required to be started therein or necessary to make the statement therein, in the light of the circumstances in which they are made, not misleading, and the Company will reimburse the Holder, such officers and directors of the Holder, such underwriter, and each such controlling person of the Holder or the underwriter, promptly upon demand, for any other Obligor reasonable legal or any other person under expenses incurred by them in connection with investigating, preparing to defend, or defending against, or appearing as a third-party witness in connection with such loss, claim, damage, liability, action, or proceeding; provided, however, that the terms Company will not be liable in any such case to the extent that any such loss, damage, liability, cost, or expense arises solely out of or is based solely upon an untrue statement or alleged untrue statement, or omission or alleged omission, so made in conformity with information furnished to the Company in writing by the Holder, such underwriter, or such controlling persons in writing specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any composition of its due diligence obligations; and provided, further, that the indemnity agreement contained in this Sub-Section 6.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or arrangement action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder, the officers and directors of the Holder, the underwriter, or any controlling person of the Holder or the underwriter, and regardless of any sale in connection with such offering by the Holder. Such indemnity shall survive the transfer of securities by a Holder.
6.2 The Holder participating in a registration hereunder will indemnify and hold harmless the Company, the officers and directors of the Company, any underwriter for the Company, and each person, if any, who controls the Company or such underwriter, from and against any and all losses, damages, claims, liabilities, costs, or expenses (including any amount paid in any settlement effected with the Holder's consent) to which the Company, the officers and directors of the Company or any such controlling person and/or any such underwriter may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs, or expense arise out of or are based on (i) any untrue or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and the Holder will reimburse the Company, the officers and directors of the Company, any underwriter, and each such controlling person of the Company or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend, or defending against, or appearing as a third-party witness in connection with such loss, claim, damage, action, or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished in a certificate by the Holder specifically for inclusion therein. The foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement), or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) the Company and (ii) any underwriter, if a copy of the final prospectus was not furnished to the person or entity asserting the loss, liability, claim, or damage at or prior to the time such furnishing is required by the Security Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this Sub-Section 6.2 shall not apply to amounts paid in settlement of any such claim loss, damage, liability, or action if such settlement is effected without the consent of the Holder, as the case may be, which consent shall not be unreasonably withheld. In no event shall the liability of the Holder exceed the gross proceeds from the offering received by the Holder.
6.3 Promptly after receipt by an indemnified party pursuant to the provisions of Section 6.1 or 6.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said Section 6.1 or 6.2, promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party shall only relieve it from any liability which it may have to any indemnified party to the extent that such indemnifying party has been damaged by such omission to notify hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor or other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any member action include both the indemnified party and the indemnifying party and if in the reasonable judgment of the Group;
indemnified party there are separate defenses that are available to the indemnified party or there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select, at the expense of the indemnifying party, separate counsel to participate in the defense of such action on behalf of such indemnified party or parties; provided, further, however, that if the Holder are the indemnified party, the Holder shall be entitled to one separate counsel at the expense of the Company and if underwriters are also indemnified parties who are entitled to counsel separate from the indemnifying party, then all underwriters as a group shall be entitled to one separate counsel at the expense of the Company. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Section 6.1 or 6.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the indemnified party's intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
6.4 If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses. In determining the basis amount of contribution to which the argument that an L/G respective parties are entitled, there shall be considered the parties' relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable consideration appropriate under the circumstances. In no event shall any party that is found liable for fraudulent misrepresentation within the meaning of Section 1(f) of the Securities Act be entitled to contribution hereunder from any party not have been issued or should not have been issued under its terms by found so liable, and in no event shall any contribution from the Holder be more than the gross proceeds that Issuing Bank pursuant to it receives from the terms of this Agreement or applicable law or regulationsoffering .
Appears in 2 contracts
Sources: Registration Rights Agreement (Nur Macroprinters LTD), Registration Rights Agreement (Nur Macroprinters LTD)
Indemnities. (a) Each The Borrower shall immediately on demand indemnify and hold harmless the Lender and its affiliates and each of the respective officers, directors, employees, agents, advisors, attorneys and representatives of each (each, an Issuing Bank "Indemnified Party") from and against any costand all claims, loss damages, losses liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or liability several, that may be incurred by that Issuing Bank or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto, arising out of or in connection with or relating to the Term Loans, the Loan Documents (excluding the Warrants) or the transactions contemplated thereby, or any use made or proposed to be made with the proceeds of the Term Loans, whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its shareholders or creditors, an Indemnified Party or any other person, or an Indemnified Party is otherwise than a party thereto and whether or not the transactions contemplated hereby are consummated, except to the extent such claim, damage loss, liability or expense is found in a final non-appealable judgment by reason a court of that Issuing Bankcompetent jurisdiction to have resulted from such Indemnified Party's gross negligencenegligence or willful misconduct. No Indemnified Party shall have any liability (whether direct or indirect, bad faith in contract, tort or wilful otherwise) to the Borrower or any of its shareholders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is found in a final non-appealable judgement by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct) in acting as an Issuing Bank under . In no event, however, shall any L/G requested by Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages and the Borrower hereby waives, releases and agrees (or for itself and on behalf ofof its Subsidiaries) that Borrowernot to sue ▇▇▇n any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(b) The obligations of Borrower agrees that any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G indemnification or other person or protection provided to any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 9.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 2 contracts
Sources: Term Loan Agreement (Arv Assisted Living Inc), Term Loan Agreement (Arv Assisted Living Inc)
Indemnities. (a) Each Borrower shall immediately on demand In the event of any registered offering of Registrable Securities pursuant to this Section 1:
1.4.1. The Company will indemnify an Issuing Bank and hold harmless, to the fullest extent permitted by law, any Holder whose Registrable Securities are included in the registration and each person, if any, who controls the Holder, from and against any costand all losses, loss damages, claims, liabilities, joint or liability incurred by that Issuing Bank several, and reasonable costs and expenses (otherwise than by reason of that Issuing Bankincluding any amounts paid in any settlement effected with the Company's gross negligenceconsent) to which the Holder or controlling person may become subject under applicable law or otherwise, bad faith or wilful misconduct) in acting insofar as an Issuing Bank under any L/G requested by such losses, damages, claims, liabilities (or on behalf of) that Borrower.
(b) The obligations actions or proceedings in respect thereof), costs or expenses arise out of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
are based upon (i) any timeuntrue statement or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, waiver as amended or consent granted tosupplemented, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and the Company will reimburse the Holder and each such controlling person of the Holder, promptly upon written demand, for any other Obligor reasonable legal or any other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable to any Holder or controlling person under in any such case to the terms extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Holder or such controlling persons claiming for indemnification in writing specifically for inclusion therein; provided, further, that the indemnity agreement contained in this Section 1.4.1 shall not apply to amounts paid in settlement of any composition such claim, loss, damage, liability or arrangement action if such settlement is effected without the written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the selling Holder or any controlling person of the selling Holder, and regardless of any sale in connection with such offering by the selling Holder. Such indemnity shall survive the transfer of securities by a selling Holder.
1.4.2. As a condition precedent to the Company's obligations under this Section 1, each Holder participating in a registration hereunder will furnish to the Company in writing any information regarding such Holder, the Registrable Securities held by it, and his or her intended method of distribution of Registrable Securities as the Company may reasonably request and will indemnify and hold harmless the Company (and each of its directors and officers), any underwriter for the Company, any other person participating in the distribution and each person, if any, who controls the Company, such underwriter, or such other person from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling Holder's consent) to which the Company (and each of its directors and officers) or any such controlling person and/or any such underwriter may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on (i) any untrue or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and each such Holder will reimburse the Company (and each of its directors and officers), any underwriter, any other person participating in the distribution and each such controlling person of the Company, any underwriter or other person, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by such Holder specifically for inclusion therein. The foregoing indemnity shall be individual and several (and not joint or joint and several) by each Holder. The foregoing indemnity is also subject to the condition that, insofar as it relates to any such untrue statement (or alleged untrue statement) or omission (or alleged omission) made in the preliminary prospectus but eliminated or remedied in the amended prospectus at the time the registration statement becomes effective or in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) the Company, (ii) any underwriter and any person, if any, controlling the Company or the underwriter, if a copy of the final prospectus was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Securities Act; provided, further, that this indemnity shall not be deemed to relieve any underwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this Section 1.4.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Holders, as the case may be, which consent shall not be unreasonably withheld. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
1.4.3. Promptly after receipt by an indemnified party pursuant to the provisions of Sections 1.4.1 or 1.4.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of Sections 1.4.1 or 1.4.2, promptly notify the indemnifying party of the commencement thereof; however, the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party hereunder, unless such omission is materially prejudicial to the indemnifying party's ability to defend such action. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any creditor other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party reasonably believes that there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select one separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said Sections 1.4.1 or 1.4.2 for any member legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the Group;
preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and within 15 days after written notice of the indemnified party's intention to employ separate counsel pursuant to the previous sentence, or (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party will consent to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance entry of any formality judgment or other requirement enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of to such claim or litigation.
1.4.4. If recovery is not available under the foregoing indemnification provisions, for any instrument or any failure reason other than as specified therein, the parties entitled to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to indemnification by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower terms thereof shall be entitled to reject payment otherwise due by it pursuant contribution to this Agreement on liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. In determining the basis amount of contribution to which the argument that an L/G respective parties are entitled, there shall be considered the parties' relative knowledge and access to information concerning the matter with respect to which an Issuing Bank claims payment should not have been issued the claim was asserted, the opportunity to correct and prevent any statement or should not have been issued omission, and any other equitable considerations appropriate under its terms the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by that Issuing Bank pursuant such Holder.
1.4.5. Notwithstanding the foregoing, to the terms of this Agreement or applicable law or regulationsextent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall prevail.
Appears in 2 contracts
Sources: Registration Rights Agreement (Novume Solutions, Inc.), Registration Rights Agreement (Novume Solutions, Inc.)
Indemnities. (a) Each Borrower The Company agrees to, and shall immediately on demand cause each other Loan Party to, indemnify and hold harmless each Agent, each Arranger, each Lender and each Issuing Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article IX) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Payment Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Company shall not have any liability under this Section 14.17 to an Indemnitee with respect to any Indemnified Matter to the extent such liability has resulted from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder; provided, further, that the Company shall not be required to reimburse the Indemnitees for the fees and expenses of more than one (1) joint counsel for the Administrative Agent and the Collateral Agent and one (1) joint counsel for the other Indemnitees unless such representation shall result in acting as an Issuing Bank a conflict of interest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Collateral Agent, at the direction of the Administrative Agent, any Lender or any Issuing Lender, or any Agent, any Lender or any Issuing Lender having become the successor in interest to the Company or any of its Subsidiaries and (y) to the extent attributable to acts of the Agents, such Lender or such Issuing Lender or any agent on behalf of) that Borrowerof such Agent, such Lender or such Issuing Lender.
(b) The obligations Company shall, and shall cause each other Loan Party to, indemnify the Agents, the Lenders and each Issuing Lenders for, and hold the Agents, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company nor any Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and lead such defense, and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense; provided, however, that the fees and expenses of such counsel shall be entitled reasonable for a secondary counsel; provided, further, that the Company shall not be required to reject payment otherwise due reimburse the Indemnitees for the fees and expenses of more than one (1) joint counsel for the Administrative Agent and the Collateral Agent and one (1) joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Company’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 14.17) or any other Loan Document shall (i) survive Full Satisfaction of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Payment Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp)
Indemnities. The Owners and the Parent (aherein each an "Indemnitor") Each Borrower shall immediately on demand indemnify each, jointly and severally, indemnify, protect, defend and hold harmless the Lenders, the Investor Participant, the Collateral Trustee, the Agent, the Owner Trust, the Trust Company and the Owner Trustee, the Swap Counterparty, their respective successors, assigns, each of their respective Affiliates and each of their respective agents, employees, officers and directors (each an Issuing Bank "Indemnitee") from, against and in respect of, any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including reasonable legal fees and expenses, of whatsoever kind and nature (herein collectively called "Expenses"), imposed on, incurred by or asserted against any costIndemnitee, loss in any way relating to, resulting from or liability incurred by that Issuing Bank (otherwise than by reason arising out of that Issuing Bank's gross negligenceor in connection with, bad faith in each case, directly or wilful misconduct) in acting as an Issuing Bank under indirectly, any L/G requested by (one or on behalf of) that Borrower.
(b) The obligations more of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) includingthe following:
(i) any timethe execution, waiver delivery or consent granted to, or composition withperformance of this Agreement, any Obligorof the Operative Documents including, but not limited to any beneficiary under an L/G or indemnity provided by any Participant to the Collateral Trustee pursuant to section 9.2(d) of the Collateral Trust Agreement, and any other person;
instrument or agreement entered into by any of the parties hereto in connection with the transactions contemplated hereby and any amendment, supplement or modification of or to any of the Operative Documents requested by such Indemnitor or its Affiliates; (ii) the release Vessels or any Part, including with respect thereto, (a) the manufacture, design, purchase, acceptance, nonacceptance or rejection, ownership, idling, laying up, documentation, redocumentation, registration, reregistration, deregistration, financing, delivery, nondelivery, charter, subcharter, assignment, possession, use or non-use, operation, maintenance, testing, repair, overhaul, condition, alteration, modification, addition, improvement, storage, seaworthiness, replacement, repair, sale, substitution, return, abandonment, redelivery or other disposition of any Vessel or any Part (including, in each case, latent or other Obligor defects, whether or not discoverable and any claim for patent, trademark, or copyright infringement and all liabilities, obligations, losses, damages and claims in any way relating to or arising out of injury to persons, properties or the environment, strict liability in tort), (b) any claim or penalty arising out of violations of Applicable Law by such Indemnitor, (c) death or property damage of passengers, shippers or others, (d) any Owner Liens in respect of any Vessel or any Part; (iii) any breach of or failure to perform or observe, or any other person noncompliance with, any covenant or agreement or other obligation to be performed in any material respect by such Indemnitor under any Operative Document to which it is a party or the terms falsity of any composition representation or arrangement warranty of such Indemnitor in any Operative Document to which it is a party or the occurrence of any Event of Default; (iv) (A) any Release of Product and any violation by such Indemnitor of any applicable Environmental Law, including removal costs, damages for injury to or destruction of natural resources, or damages incurred by any private claimant, (B) any Environmental Claim arising out of the management, use, control, ownership or operation of property or assets by such Indemnitor (or, after foreclosure, by the Agent, the Lenders or their respective successors or assigns) and (C) the breach by such Indemnitor of any representation or warranty set forth in any of the Operative Documents; (v) The exercise by such Indemnitee of remedies in the event of a Charter Default or a Charter Event of Default and the enforcement of any security or other rights with respect thereto; (vi) any creditor violation of Applicable Law by any Owner, the Bareboat Charterer, the Parent, or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or securityBareboat Charterer; or
and (vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued the Trust Company only, the Trust Estate, the administration of the Trust Estate, the transactions contemplated by the Operative Documents or should not have been issued under its terms by that Issuing Bank pursuant the action or inaction of the Owner Trustee (but only to the terms extent such action or inaction of this Agreement or applicable law or regulationsthe Owner Trustee results in Expenses to the Trust Company).
Appears in 1 contract
Sources: Participation Agreement (Overseas Shipholding Group Inc)
Indemnities. (a) Each Borrower Except as otherwise provided in Section 7.03 (c) below, the Company releases the Division, its directors, employees, and agents, and the Issuer and the Governmental Unit, their officers, directors, employees, agents, and attorneys (the “Indemnified Parties”) from, and the Indemnified Parties shall immediately on demand indemnify an Issuing Bank against not be liable for, and the Company agrees and shall protect, indemnify, defend, and hold the Indemnified Parties harmless from, any and all liability, cost, expense, damage, or loss of whatever nature (including, but not limited to, attorneys’ fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of, in connection with, or related to (i) the issuance, offering, sale, delivery, payment of the Bonds and the interest thereon, or redemption of the Bonds, the provisions and rate of interest on the Bonds, the Bond Resolution, the Indenture, and this Agreement and the obligations imposed on the Issuer hereby and thereby; or the design, construction, installation, operation, use, occupancy, maintenance, or ownership of the Project; (ii) any written statements or representations made or given by the Company or any of its officers or employees, to the Indemnified Parties, the Trustee, or any underwriters or purchasers of any of the Bonds, with respect to the Issuer, the Company, the Project, or the Bonds or the offer or issuance thereof, including, but not limited to, statements or representations of facts, financial information, or corporate affairs; (iii) damage to property or any injury to or death of any person that may be occasioned by any cause whatsoever pertaining to the Project; (iv) any loss or liability damage incurred by that Issuing Bank the Issuer as a result of violation by the Company of the provisions of Sections 7.04 or 7.05 hereof; and (otherwise than v) any action required to be taken by reason of that Issuing Bank's gross negligencethe Issuer under this Agreement, bad faith the Bond Resolution, or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerthe Indenture.
(b) The obligations Company hereby agrees to indemnify and hold the Trustee and its directors, officers, agents, and employees (collectively, the “Indemnitees”) harmless from and against any and all claims, liabilities, losses, damages, fines, penalties, and expenses, including out-of-pocket, incidental expenses, legal fees and expenses, and the allocated costs and expenses of any Borrower under this Clause will not in-house counsel and legal staff (“Losses”) that may be affected by any actimposed on, omissionincurred by, matter or thing whichasserted against, but for this Clause, would reduce, release the Indemnitees or prejudice any of its obligations them for following any instruction or other direction upon which the Trustee is authorized to rely pursuant to the terms of the Indenture, this Agreement or any of the financing documents. In addition to and not in limitation of the immediately preceeding sentence, the Company also agrees to indemnify and hold the Indemnitees and each of them harmless from and against any and all Losses that may be imposed on, incurred by, or asserted against the Indemnitees or any of them in connection with or arising out of the Trustee’s performance under the Indenture, this Clause (without limitation and whether or not known to it Agreement or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsfinancing document.
(c) Neither If any claim is asserted under (a) above, the party seeking indemnity will give prompt notice to the Company, and the Company nor shall have the sole right and duty to assume, and will assume, the defense thereof, with full power to litigate, compromise, or settle the same in its sole discretion. THE PROVISIONS OF SECTIONS 7.03(a) AND (b) SHALL REMAIN AND BE IN FULL FORCE AND EFFECT EVEN IF ANY SUCH LIABILITY, COST, EXPENSE, DAMAGE, OR LOSS OR CLAIM THEREFOR BY ANY PERSON, DIRECTLY OR INDIRECTLY RESULTS FROM, ARISES OUT OF, OR RELATES TO, OR IS ASSERTED TO HAVE RESULTED FROM, ARISE OUT OF, OR BE RELATED TO, IN WHOLE OR IN PART, ONE OR MORE NEGLIGENT ACTS OR OMISSIONS (OTHER THAN, IN THE CASE OF AN INDEMNIFIED PARTY UNDER (a) ABOVE, AS A RESULT OF WILLFUL MISCONDUCT OR BAD FAITH OF THE PARTY SEEKING INDEMNITY OR, IN THE CASE OF THE TRUSTEE, AS A RESULT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH ON THE PART OF THE TRUSTEE) OF THE PARTY SEEKING INDEMNITY, IN CONNECTION WITH THE MATTERS SET FORTH THEREIN. Notwithstanding the foregoing, in any Borrower action naming the Trustee as defendant, the Trustee shall have the right to retain separate legal counsel at the expense of the Company; provided that, in the event that the Company is not in Default under this Agreement, the Company shall have the right of approval of any such legal counsel retained by the Trustee for the Trustee’s defense, which approval shall not be unreasonably withheld and shall be entitled to reject payment otherwise due given promptly upon request by it pursuant to the Trustee. The Trustee and the Company shall reasonably cooperate with each other in the defense of any such action.
(d) The provisions of this Section 7.03 shall survive the termination of this Agreement on the basis of the argument that an L/G and, with respect to which an Issuing Bank claims payment should not have been issued the Trustee, the resignation or should not have been issued under its terms by that Issuing Bank pursuant to removal of the terms of this Agreement or applicable law or regulationsTrustee for any reason.
Appears in 1 contract
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless the Administrative Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including reasonable and documented fees and disbursements of counsel to any such Indemnitee, but excluding taxes (other than those covenanted to be paid by the Borrower under this Agreement) imposed on or measured by the Indemnitee’s net income and franchise taxes, imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such Indemnitee is organized or in which its principal office or Applicable Lending Office is located) which may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or in contract, tort or otherwise, relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”). Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of TNCLP or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in connection with any Remedial Action concerning TNCLP or any of its Subsidiaries; (iii) any costs or liabilities incurred in connection with any Environmental Lien in respect of any assets or properties of TNCLP and its Subsidiaries; (iv) any costs or liabilities incurred in connection with any other matter (concerning TNCLP or any of its Subsidiaries) under any Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to TNCLP or any of its Subsidiaries, or the owner, lessee or operator of any property of TNCLP or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent incurred following (A) foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to TNCLP or any of its Subsidiaries, and (B) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of the Administrative Agent, such Lender or such Issuer; provided, however, that the Borrower shall immediately on demand indemnify not have any obligation under this Section 11.4 to an Issuing Bank against Indemnitee with respect to any cost, loss Indemnified Matter caused by or liability incurred by that Issuing Bank (otherwise than by reason resulting from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerorder.
(b) The obligations Borrower shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither the Company nor The Borrower agrees that any Borrower shall be entitled indemnification or other protection provided to reject payment otherwise due by it any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. (a) Each The Borrower shall immediately on demand indemnify agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender and each of their respective Related Persons (each such Person being an Issuing Bank "Indemnitee") from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Related Document, any Disclosure Document, any Obligation (or the repayment thereof), the use or intended use of the proceeds of any Loan, any Related Transaction, or any securities filing of, or with respect to, any Group Member, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofof any Group Member or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of Securities or creditors (and including attorneys' fees in any case), whether or not any 84 such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the "Indemnified Matters"); provided, however, that Borrowerthe Borrower shall not have any liability under this Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability (i) has resulted primarily from the gross negligence or willful misconduct of such Indemnitee as determined by a court of competent jurisdiction in a final non-appealable judgment or order or (ii) relates to taxes, for which indemnification is provided (or not provided) in Section 2.17. Furthermore, the Borrower waives and agrees not to assert against any Indemnitee, and shall cause each other Loan Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person. The foregoing provisions for indemnification are not intended to include those costs and expenses described in Section 11.03, the reimbursement of which is controlled by such Section.
(b) The obligations Without limiting the foregoing, "Indemnified Matters" includes all Environmental Liabilities, including those arising from, or otherwise involving, any property of any Borrower under this Clause will not be affected by Related Person or any actactual, omissionalleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, matter upon or thing whichinto such property or natural resource or any property on or contiguous to any real property of any Related Person, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known not, with respect to it any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Related Person or the owner, lessee or operator of any other person) including:
property of any Related Person through any foreclosure action, except, in the case above, to the extent such Environmental Liabilities (i) any timearise solely from events occurring in the first instance on or after the date of foreclosure, waiver or consent granted towhich are not related to and do not arise from circumstances existing prior to foreclosure, or composition with, any Obligor, any beneficiary under an L/G or any other person;
and (ii) (A) are incurred solely following foreclosure by any Secured Party or following any Secured Party having become the release successor-in-interest to any Loan Party or (B) are attributable solely to acts of any other Obligor such Indemnitee and have resulted primarily from the gross negligence or any other person under the terms willful misconduct of any composition or arrangement with any creditor or any member such Indemnitee as determined by a court of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any competent jurisdiction in a final non-presentation appealable judgment or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsorder.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 1 contract
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless each Agent, Lender and Issuer (including each Person obligated on a Hedging Contract that is a Loan Document if such Person was a Lender or Issuer at the time of it entered into such Hedging Contract) and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions to Loans and Letters of Credit) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, any Related Document, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not have any liability under this Section 10.4 to an Issuing Bank against Indemnitee with respect to any cost, loss Indemnified Matter that has resulted primarily from the gross negligence or liability incurred by that Issuing Bank (otherwise than by reason willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Administrative Agent, such Lender or such Issuer.
(b) The obligations Borrower shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 10.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. Borrower agrees to indemnify, hold harmless and defend each of the Lender Parties (each, an “Indemnitee”) for, from and against all Liabilities that may be imposed on, incurred by or asserted against an Indemnitee in any matter relating to or arising out of: (a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss Loan Document or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by Obligation (or on behalf ofrepayment thereof) that Borrower.
or the use of Loan proceeds; (b) The obligations the Lending Proposal, or any other commitment letter, proposal, or term sheet with any Person; (c) Borrower’s operations at or relating to the Sites; (d) the Collateral, including its design, construction, operation, alteration, maintenance, or use by Borrower or any other Person; (e) any permitted disclosure of Credit Party Information; (f) any Borrower under this Clause will not be affected misrepresentation or inaccuracy in any representation or warranty in any Loan Document; (g) any breach or failure by any Credit Party to pay or perform the Obligations; or (h) any other act, omissionevent or transaction related, matter contemplated in or thing which, but for this Clause, would reduce, release or prejudice attendant to any of its obligations under this Clause (without limitation and the foregoing, including any actual or prospective investigation, litigation or other proceeding relating to any of the foregoing, whether or not known such Indemnitee initiated such investigation, litigation or other proceeding or is a party thereto and without regard to it or any other person) including:
(i) any timelegal theory, waiver or consent granted toincluding pursuant to Applicable Law, common law, equity, contract, tort, or composition withotherwise (collectively, any Obligorthe “Indemnified Matters”). Notwithstanding the foregoing, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled not have any liability hereunder to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G any Indemnitee with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant any Indemnified Matter, to the terms extent such liability has resulted primarily from the gross negligence or willful misconduct of this Agreement such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or applicable law order. Furthermore, Borrower and each other Credit Party waive and agree not to assert against any Indemnitee, and shall cause each other Credit Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or regulationsasserted against any Lender Party.
Appears in 1 contract
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless the Administrative Agent, the Arrangers, each Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representative, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions to Loans)) (each such Person being an “Indemnitee”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnitee or any other Person or whether or not any such Indemnitee is a party thereto and whether or not the transactions contemplated hereby are consummated, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify not CREDIT AGREEMENT FMC FINANCE B.V. have any obligation under this Section 12.4 to an Issuing Bank against Indemnitee with respect to any cost, loss Indemnified Matter caused by or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's resulting from the gross negligence, bad faith willful misconduct or wilful misconductwillful breach of the Loan Documents of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent or any Lender, or the Administrative Agent or any Lender having become the successor in interest to the Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, such Lender or any agent on behalf of) that Borrowerof the Administrative Agent or such Lender.
(b) The obligations Borrower shall indemnify the Administrative Agent and the Arrangers and the Lenders, and hold the Administrative Agent and the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Arrangers and the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 12.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (FMC Corp)
Indemnities. (a) Each Borrower shall immediately on demand The Loan Parties agree to indemnify and hold harmless the Administrative Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions Precedent) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including fees, disbursements and expenses of financial advisors and of one primary counsel and, if necessary, one local counsel per jurisdiction for the Indemnitees) that may be imposed on or incurred by against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Financing Agreement, any Obligation owing under any Financing Agreement, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Borrowers shall not have any liability under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter that has resulted from the gross negligence or willful misconduct of that Issuing Bank's gross negligence, Indemnitee or bad faith breach by such Indemnitee of its material obligations under this Agreement, as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of any Loan Party involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning any Loan Party, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Loan Party, or the owner, lessee or operator of any property of any Loan Party by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the any Loan Party and (y) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Administrative Agent, such Lender or such Issuer.
(b) The obligations Loan Parties shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Loan Parties, at the Company nor request of any Borrower Indemnitee, shall be entitled have the obligation to reject payment otherwise due defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Loan Parties, in any event, may participate in the defense thereof with legal counsel of the Loan Parties’ choice. In the event that such Indemnitee requests the Loan Parties to defend against such investigation, litigation or proceeding or requested Remedial Action, the Loan Parties shall promptly do so and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Loan Parties’ obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Loan Parties agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Financing Agreement shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Financing Agreement.
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Indemnities. (a) Each Borrower shall immediately on demand indemnify Borrowers agree to jointly and severally indemnify, hold harmless and defend Administrative Agent, each Lender, each L/C Issuer, each Secured Hedging Counterparty, each Person that each L/C Issuer causes to Issue Letters of Credit hereunder and each of their respective Related Persons (each such Person being an Issuing Bank “Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Related Document, including the Term Loan Agreement and the Term Loan Documents and the Skilled RE Credit Agreement and the Skilled RE Loan Documents, any Disclosure Document, any Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, any transaction contemplated by that Issuing Bank a Related Document, including the Term Loan Agreement and the Term Loan Documents and the Skilled RE Credit Agreement and the Skilled RE Loan Documents, or any securities filing of, or with respect to, any Loan Party; provided, however, with respect to Liabilities arising from any Related Document, such Liabilities (otherwise than A) shall be claimed by reason the Indemnitee under such Related Document to the extent arising thereunder (by way of that Issuing Bank's gross negligenceexample, bad faith or wilful misconductif the Liability of a Lender arises solely as a result of such Lender also being a lender under the Term Loan Facility, such Lender must seek indemnity pursuant to the Term Loan Documents and not this Agreement), and (B) in acting as an Issuing Bank shall be claimed without duplication of any indemnity provided under any L/G requested Related Document, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by (or on behalf ofof any Loan Party or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions in connection with any of the foregoing, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of Securities or creditors (and including attorneys’ fees in any case of a single counsel and a single local counsel in each applicable jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as a whole, and, in the case of an actual or perceived conflict of interest, another firm of counsel for such affected Person), whether or not (A) any such Indemnitee, Related Person, holder or creditor is a party thereto and (B) any such claim, litigation, investigation or proceeding is brought by the Borrowers, their equity holders, their respective Affiliates, their respective creditors or any other Person, or is based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that BorrowerBorrowers shall not have any liability under this Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability (A) has resulted primarily from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, or (B) has resulted from a material breach in bad faith of this Agreement by such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, each Loan Party waives and agrees not to assert against any Indemnitee, and shall cause each other Loan Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person.
(b) The obligations of any Borrower under this Clause will not be affected by any actWithout limiting the foregoing, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
“Indemnified Matters” includes (i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
[reserved]; (ii) the release any claims, proceedings or causes of action brought by any other Obligor or any other person under the terms resident of any composition or arrangement with any creditor or any member of the Group;
a Facility; and (iii) the takingany loss, variationdamage, compromisecost or expense, exchangeincluding reasonable attorneys’ fees, renewal incurred or release of, or refusal or neglect to perfect, take up or enforce, suffered by any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance Indemnitee as a result of any formality or other requirement in respect (x) breach by a Borrower of any instrument contract or any failure to realise the full value lease with a resident of a Facility or (y) violation of any security;
(iv) any incapacity applicable Requirement of Law governing a Facility or lack of power, authority or legal personality of or dissolution or change the uses described in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsSection 4.1(b).
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 1 contract
Indemnities. (a) Each Borrower Except as otherwise provided in this Section 7.03, the Company releases the Department, its directors, employees, and agents, and the Issuer and the Governmental Unit, their officers, directors, employees, agents, and attorneys (the "Indemnified Parties") from, and the Indemnified Parties shall immediately on demand indemnify an Issuing Bank against not be liable for, and the Company agrees and shall protect, indemnify, defend, and hold the Indemnified Parties harmless from, any and all liability, cost, expense, damage, or loss or liability incurred by that Issuing Bank of whatever nature (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing whichincluding, but for not limited to, attorneys' fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of, in connection with, or related to (i) the issuance, offering, sale, delivery, payment of the Bonds and the interest thereon, or redemption of the Bonds, the provisions and rate of interest on the Bonds, the Bond Resolution, the Indenture, and this ClauseAgreement and the obligations imposed on the Issuer hereby and thereby, would reduceor the design, release construction, installation, operation, use, occupancy, maintenance, or prejudice ownership of the Project; (ii) any written statements or representations made or given by the Company or any of its obligations under this Clause (without limitation and whether officers or not known employees, to it the Indemnified Parties, the Trustee, or any other person) underwriters or purchasers of any of the Bonds, with respect to the Issuer, the Company, the Project, or the Bonds or the offer or issuance thereof, including:
(i) any time, waiver or consent granted but not limited to, statements or composition withrepresentations of facts, any Obligorfinancial information, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
corporate affairs; (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect damage to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person property or any non-presentation injury to or non-observance death of any formality or other requirement in respect person that may be occasioned by any cause whatsoever pertaining to the Company's use of any instrument or any failure to realise the full value of any security;
Project; (iv) any incapacity loss or lack damage incurred by the Issuer as a result of power, authority violation by the Company of the provisions of Sections 7.04 or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
7.05 hereof; and (v) any amendment (however fundamental) or replacement of a Finance Document consented action required to be taken by the CompanyIssuer under this Agreement, any L/G the Bond Resolution, or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthe Indenture.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 1 contract
Sources: Loan Agreement (Stratagene Corp)
Indemnities. (a) Each Borrower The Company agrees to, and shall immediately on demand cause each other Loan Party to, indemnify and hold harmless each Agent, the Arranger, each Lender and each Issuing Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article IX) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or liability several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Payment Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason the Company shall not have any liability under this Section 14.17 to an Indemnitee with respect to any Indemnified Matter to the extent such liability has resulted from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder; provided, further, that the Company shall not be required to reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agents and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any of its Subsidiaries involving any property subject to a Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Company or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any of its Subsidiaries, or the owner, lessee or operator of any property of the Company or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Collateral Agent, at the direction of the Administrative Agents, any Lender or any Issuing Lender, or any Agent, any Lender or any Issuing Lender having become the successor in interest to the Company or any of its Subsidiaries and (y) to the extent attributable to acts of the Agents, such Lender or such Issuing Lender or any agent on behalf of) that Borrowerof such Agent, such Lender or such Issuing Lender.
(b) The obligations Company shall, and shall cause each other Loan Party to, indemnify the Agents, the Lenders and each Issuing Lenders for, and hold the Agents, the Lenders and each Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Lenders and the Issuing Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Company, at the request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Company, in any event, may participate in the defense thereof with legal counsel of the Company’s choice. In the event that such Indemnitee requests the Company nor any Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and lead such defense, and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense; provided, however, that the fees and expenses of such counsel shall be entitled reasonable for a secondary counsel; provided, further, that the Company shall not be required to reject payment otherwise due reimburse the Indemnitees for the fees and expenses of more than one joint counsel for the Administrative Agents and the Collateral Agent and one joint counsel for the other Indemnitees unless such representation shall result in a conflict of interest among the Indemnitees. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Company’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Company agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 14.17) or any other Loan Document shall (i) survive Full Satisfaction of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Payment Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. (a) Each The Borrower shall immediately on demand agrees to indemnify and hold harmless the Administrative Agent, the Arranger, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representative, attorneys, trustees, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an Issuing Bank "INDEMNITEE") from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature whatsoever (including fees and disbursements of counsel to any such Indemnitee), joint or several, which may be imposed on, incurred by, or asserted or awarded against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding or the preparation of any defense in connection therewith, regardless of whether any such investigation, litigation or proceeding is brought by that Issuing Bank (any Loan Party, any of its directors, securityholders or creditors, an Indemnitee or any other Person, whether any such Indemnitee is otherwise than by reason of that Issuing Bank's gross negligencea party thereto, bad faith whether direct, indirect, or wilful misconduct) consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in acting as an Issuing Bank under any L/G requested by (equity, or on behalf of) that Borrower.
(b) The obligations contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any Borrower under this Clause will not be affected by other Loan Document, any Obligation, any Letter of Credit, the Confidential Information Memorandum, or any act, omissionevent or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the "INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, that the Borrower shall not have any obligation under this Section 9.4 to an Indemnitee with respect to any Indemnified Matter (x) caused by or thing whichresulting from the gross negligence or willful misconduct of that Indemnitee or (y) arising from the unexcused breach of any contractual commitment of such Indemnitee to the Borrower, but for this Clauseif (in the case of (y)) a court of competent jurisdiction in a final non-appealable judgment or order establishes that such unexcused breach has occurred. Without limiting the foregoing, would reduceIndemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, release present or prejudice future operations of the Borrower or any of its obligations under this Clause (without limitation and whether Subsidiaries or not known damage to it real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Materials of Environmental Concern on, upon or into such property or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
contiguous real estate; (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the release of any other Obligor Borrower or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
its Subsidiaries; (iii) the taking, variation, compromise, exchange, renewal any costs or release of, or refusal or neglect to perfect, take up or enforce, liabilities incurred in connection with any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
Environmental Lien; and (iv) any incapacity costs or lack of power, authority or legal personality of or dissolution or change liabilities incurred in the members or status of an Obligor or any beneficiary under an L/G or connection with any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person matter under any Finance DocumentEnvironmental Law, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither including the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis Comprehensive Environmental Response, Compensation and Liability Act of the argument that an L/G 1980, 49 U.S.C. Sections 9601 et seq. and applicable state property transfer laws, whether, with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the terms successor in interest to the Borrower or any of this Agreement its Subsidiaries, or applicable law the owner, lessee or regulationsoperator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent incurred following (A) foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries, and (B) attributable to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of the Administrative Agent or such Lender.
Appears in 1 contract
Indemnities. (a) Each The Borrower agrees to indemnify and hold harmless the Administrative Agent, the Collateral Agent, the Arrangers, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions to Loans and Letters of Credit) (each such Person being an "Indemnitee") from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses, joint or several, of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, any Disclosure Document, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the "Indemnified Matters"); provided, however, that the Borrower shall immediately on demand indemnify not have any liability under this Section 11.4 to an Issuing Bank against Indemnitee with respect to any cost, loss Indemnified Matter that has resulted primarily from the gross negligence or liability incurred by that Issuing Bank (otherwise than by reason willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, "Indemnified Matters" include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries 110 FIRST LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. Section 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent, the Collateral Agent, any Lender or any Issuer, or the Administrative Agent, the Collateral Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of) that Borrowerof the Administrative Agent, such Lender or such Issuer.
(b) The obligations Borrower shall indemnify the Administrative Agent, the Collateral Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Collateral Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower's choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower's obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. (a) Each Borrower shall immediately on demand The Issuer hereby agrees to indemnify an Issuing Bank and hold ▇▇▇▇▇▇▇ ▇▇▇▇▇ and its agents, partners, affiliates and controlling persons, and each of their respective officers, directors, and employees (collectively, the “Merrill Indemnified Participants”) harmless from and against any costand all expenses (including without limitation reasonable attorneys’ fees and disbursements), loss losses, claims, damages or liability liabilities (collectively, “Liabilities”) which are incurred by the Merrill Indemnified Participants or any of them, caused by, or in any way resulting from or relating to, (i) the Issuer’s failure to carry out any or all of its obligations under this Agreement or the breach of any of the representations, warranties, covenants or agreements of the Issuer set forth in this Agreement, including without limitation, in connection with the exercise of the Call Options or any assignment in connection with the exercise of the Call Options, or (ii) any obligations of ▇▇▇▇▇▇▇ ▇▇▇▇▇ to, in whole or in part, disgorge, or reimburse any party or entity for, payments received by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and paid to the Issuer prior to the Effective Date in respect of the Assigned Interests (pursuant to Section 3(c) or otherwise) except, with respect to clauses (i) or (ii) above, to the extent that Issuing Bank (otherwise than such Liabilities or expenses are found in a final, non-appealable judgment by reason a court of that Issuing Bank's competent jurisdiction to have resulted from the willful misconduct or willful misfeasance, gross negligence, bad faith faith, fraud or wilful misconduct) in acting as an Issuing Bank criminal conduct of such ▇▇▇▇▇▇▇ ▇▇▇▇▇ Indemnified Participants or from the reckless disregard of its, his or her obligations and duties under any L/G requested by (or on behalf of) that Borrowerthis Agreement.
(b) The obligations Issuer hereby agrees to indemnify and hold the Collateral Manager and its agents, partners, affiliates and controlling persons, and each of their respective officers, directors, and employees (collectively, the “CM Indemnified Participants”) harmless from and against any Borrower under this Clause will and all Liabilities which are incurred by the CM Indemnified Participants or any of them, including but not be affected by limited to reasonable attorneys’ fees and expenses, caused by, or in any actway resulting from or relating to, omission, matter the Issuer’s failure to carry out any or thing which, but for this Clause, would reduce, release or prejudice any all of its obligations under this Clause (Agreement or the breach of any of the representations, warranties, covenants or agreements of the Issuer set forth in this Agreement, including without limitation and whether or not known to it limitation, in connection with the exercise of the Call Options or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) assignment in connection with the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member exercise of the Group;
(iii) Call Options, except to the takingextent that such Liabilities or expenses are found in a final, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation appealable judgment by a court of competent jurisdiction to have resulted from the willful misconduct or non-observance willful misfeasance, gross negligence, bad faith, fraud or criminal conduct of any formality such CM Indemnified Participants or other requirement in respect from the reckless disregard of any instrument its, his or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary her obligations and duties under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsthis Agreement.
(c) Neither The Collateral Manager hereby agrees to indemnify and hold the Company nor Merrill Indemnified Participants and the Issuer and its agents, partners, affiliates and controlling persons, and each of their respective officers, directors, and employees (collectively, the “Issuer Indemnified Participants” and, together with the Merrill Indemnified Participants, the “Indemnified Participants”) harmless from and against any Borrower shall be entitled and all Liabilities which are incurred by the Indemnified Participants or any of them, including but not limited to reject payment otherwise due reasonable attorneys’ fees and expenses, caused by, or in any way resulting from or relating to (i) any breach by it pursuant to this Agreement on the basis Collateral Manager of any of its obligations hereunder and (ii) the failure of any of the argument that an L/G with respect representations or warranties of the Collateral Manager set forth herein to which an Issuing Bank claims payment should not have been issued be true when made or should not have been issued under its terms by that Issuing Bank pursuant when deemed made or repeated, except to the terms extent that such Liabilities or expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the willful misconduct or willful misfeasance, gross negligence, bad faith, fraud or criminal conduct of such Indemnified Participants or from the reckless disregard of its, his or her obligations and duties under this Agreement or applicable law or regulationsAgreement.
Appears in 1 contract
Indemnities. (a) Each Borrower Agent shall immediately on demand indemnify indemnify, defend, protect and hold harmless Owner and each successor or successors (each of the foregoing an Issuing Bank "Indemnified Person") from and against any costand all liabilities (including, loss or without limitation, strict liability incurred by that Issuing Bank in tort), taxes, losses, obligations (otherwise than by reason of that Issuing Bank's gross negligenceincluding, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The without limitation, all obligations of Owner under or in respect of any Borrower under this Clause will not be affected by Financing Arrangement), claims, damages, penalties, causes of action, suits, costs and expenses (including, without limitation, reasonable attorneys', experts', consultants' and accountants' fees and expenses) or judgments of any act, omission, matter nature relating to or thing which, but for this Clause, would reduce, release or prejudice in any of its obligations under this Clause (without limitation and whether or not known to it or any other person) includingway arising out of:
(i) any timethe ordering, waiver delivery, acquisition, purchase agreement for the acquisition, construction, title on acquisition, rejection, installation, possession, titling, retitling, registration, re-registration, custody by Agent of title and registration documents, use, non-use, misuse, financing, lease, sublease, security interest in, operation, transportation, securing, repair, control, lease under the Ground Lease or consent granted to, or composition with, any Obligor, any beneficiary under an L/G disposition of the Project or any other personportion thereof;
(ii) the release entering into, performance or enforcement of any other Obligor the Project Contracts and the Construction Documents or any other person under the terms of any composition violation, or arrangement with any creditor or any member alleged violation, of the GroupProject Contracts and the Construction Documents;
(iii) any breach of a representation, warranty or covenant made herein, in the takingLease or in the Guaranty or which is contained in any certificate, variation, compromise, exchange, renewal document or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G financial or other person statement furnished by or any non-presentation on behalf of Agent or non-observance of any formality the Guarantor under or other requirement in respect of any instrument connection with this Agreement, the Lease or any failure to realise the full value of any securityGuaranty;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change default by Agent in the members performance or status observance of an Obligor any term, covenant, condition or obligation contained in this Agreement or any beneficiary under an L/G failure by Agent to comply with the Ground Lease, the Easements, the Facility Support Agreement or any other person;Project Contract; and
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Companyclaims, any L/G liabilities, demands, fees, taxes, violations of contract, or any other document matter or security;
situation described in or contemplated by the indemnification provisions of subparagraphs (via) and (b) of Section 11 of the Lease, except that this Agreement shall substitute the terms "Owner" for "the Lessor" and "Agent" for "the Lessee", or "this Agreement" for "this Lease", as the context shall require and the term "Acquisition Cost" for purposes of this Section 12 shall mean Acquisition Cost as defined in this Agreement; provided, that Agent shall only have to indemnify such Indemnified Person for the matters described in this paragraph (a) to the extent caused directly or indirectly by, or resulting directly or indirectly from Agent's actions or failure to act while in possession or control of the Premises or the Project. Agent and Owner hereby acknowledge and agree that, as used in this Section 12, "Agent's actions or failure to act while in possession or control of the Premises or the Project" include any unenforceability, illegality action or invalidity failure to act on the part of any obligation subcontractors of any person under any Finance Document, any L/G Agent or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither Person permitted by Agent to enter upon the Company nor any Borrower Premises, provided that, for purposes of this Section 12, Agent shall be entitled deemed to reject payment otherwise due by it pursuant to be in possession and control of the Premises and Project as long as this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulationsis in effect.
Appears in 1 contract
Indemnities. The Minister hereby undertakes that it shall indemnify and hold harmless the SEP, its members and their Affiliates (and their officers, directors, employees, consultants and other representatives) (the "Indem- nitees") from and against any and all damages, claims or other losses (in- cluding reasonable attorneys' fees) directly or indirectly suffered or in- curred by any of them in connection with or as a result of any of the fol- lowing:
(a) Each Borrower shall immediately on demand indemnify an Issuing Bank against any costaction or omission by Telkom (including its officers, loss or liability incurred by that Issuing Bank (otherwise than by reason directors, employees, consultants and other representatives) which is in vio- lation of that Issuing Bankany applicable environmental laws prior to Telkom's gross negligence, bad faith or wilful misconductadopting and commencing the implementation of the Compliance Program contemplated at Clause 17. 02(c) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.of the Original Share- holders' Agreement;
(b) The obligations any exercise of any Borrower authority under Section 52(1) of the Telecommuni- cations Act in relation to Telkom, its Business or its Shareholders, if such action could reasonably be expected to have an adverse ef- fect on Telkom or its Business or prospects or on the SEP's in- vestment in Telkom; provided, however, that if such statutory pro- vision is revoked or amended to the satisfaction of the SEP, then this Clause will clause (b) shall not be affected effective with respect to any exercise of authority after the effective date of such revocation or amendment unless and until such statutory provision is further amended in a manner which is not satisfactory to the SEP or is superseded by or replaced with a statutory provision which is substantially similar to (or which has substantially the same effect as) Section 52(1) of the Telecommunications Act as in effect on the date hereof; or
(c) any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice amendment to any of the Licences made without the consent of Telkom if such amendment has a material adverse effect on Telkom or its obligations under business or prospects or on the SEP's investment in Telkom (where for purposes of this Clause (without limitation and whether or clause all such amendments to the Licences shall be considered in the aggregate in determining their effects); provided, however, that the foregoing shall not known be applicable to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, amendment to any Obligor, any beneficiary under an L/G or any other person;
Licences as contemplated by Section 48 of the Telecommunications Act; (ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank amend- ments made pursuant to the terms Telecommunications Amendment Act of this Agreement 2001 or applicable law any modification or regulations."restatement" of the Licences, or similar action taken to conform the Licences to amendments to the Telecommunications Act or regulations adopted pursuant thereto;
Appears in 1 contract
Sources: Shareholder Agreement
Indemnities. (a) Each Borrower shall immediately on demand The Borrowers agree to indemnify and hold harmless the Administrative Agent, each Arranger, each Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, the Disclosure Documents, the Notes or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than the Borrowers shall not have any obligation under this Section 10.4 to an Indemnitee with respect to any Indemnified Matter caused by reason or resulting primarily from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconductorder. Without limiting the foregoing, Indemnified Matters include (i) in acting as an Issuing Bank all liabilities and costs arising under any L/G requested by Environmental Law relating to or connected with the past, present or future operations of any Borrower or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants; (ii) any costs or liabilities incurred in connection with any Remedial Action concerning any Borrower; (iii) any costs or liabilities incurred in connection with any Environmental Lien; and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. 9601 et seq.) as amended and applicable state property transfer laws, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent attributable to the gross negligence or willful action of the Administrative Agent, such Lender or such Issuer or any agent on behalf of) of the Administrative Agent, such Lender or such Issuer. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.4 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Borrower, any of its directors, securityholders or creditors, an Indemnitee or any other person, or an Indemnitee is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated; provided that Borrowerto the extent no conflict exists, the Loan Parties shall only be obligated to reimburse fees and expenses of one legal counsel for all Indemnified Persons in each relevant jurisdiction.
(b) The obligations Borrowers shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither The Administrative Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Administrative Borrower, in any event, may participate in the defense thereof with legal counsel of the Administrative Borrower’s choice. In the event that such Indemnitee requests the Administrative Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Administrative Borrower shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrowers’ obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(d) The Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 10.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. (a) Each The Borrower agrees to, and does hereby, indemnify, defend (with counsel reasonably acceptable to the Bank) and hold harmless the Bank, its directors, officers, employees and agents (all being included in the word "Bank" for the purpose of this Section 4 (a)) from any and all claims, causes of action, damages, demands, fines, liabilities, losses, penalties, settlements, expenses and/or costs, however defined and of whatever kind of nature, known or unknown (including, but not limited to, attorneys' fees, consultants' fees, laboratory fees, and related expenses, all of which shall immediately on demand indemnify an Issuing Bank against be reasonable), which may be asserted against, imposed on, suffered or incurred by, the Bank, arising out of or in any cost, loss way related to or liability incurred by that Issuing Bank due to (otherwise than i) Contamination or Release (ii) any injury to human health or safety (including wrongful death) or the environment by reason of Contamination or Release(iii) any violation, or alleged violation, by the Borrower or any Subsidiary of any Environmental Law; (iv) any material misrepresentation by the Borrower in this Rider and/or the Agreement pertaining to environmental matters or in any other documents or materials furnished by the Borrower or any Subsidiary to the Bank and/or its representatives in connection with the Agreement pertaining to environmental matters; (v) any breach of, or other failure to comply with, or any default after expiration of applicable grace and cure periods under, any provision of this Rider; (vi) any lawsuit brought or threatened, settlement reached, or governmental order relating to Contamination or Release or (vii) any lien imposed upon the Property in favor of any governmental entity as a result of Contamination or Release. The duty of the Borrower to indemnify, defend, and hold harmless includes, but is not limited to any Regulatory Action. The Borrower further agrees that Issuing Bank's gross negligencepursuant to its duty to indemnify under this Section 4(a)a), bad faith it shall indemnify the Bank against all expenses incurred by the Bank (including attorneys' fees and costs) as they become due and not wait for the ultimate outcome of any litigation or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borroweradministrative proceeding.
(b) The obligations If the Borrower or any Subsidiary fails to comply with any of the provisions of this Section 4 and/or fails to initiate and diligently pursue any Clean-Up required to be performed by the Borrower or such Subsidiary's at the Property under Environmental Laws within thirty (30)days after receipt of written notice from the Bank specifying Borrower's or such Subsidiary's failure to comply or initiate and diligently pursue such Clean-up, the Bank, may, in its sole direction, either (i) declare an Event of Default under the Agreement or (ii) after notice to the Borrower, cause such Clean-Up of any Hazardous Substances or other environmental condition on or under the Property, or both; or (iii) pay on behalf of the Borrower or any subsidiary any costs, fines or penalties imposed on the Borrower or such subsidiary as a result of any Regulatory Actions; or (iv) make any other payment or perform any other reasonable act which will prevent a lien in favor of any federal, state or local governmental authority from attaching to the Property; or (v) pay, on behalf of the Borrower or such Subsidiary, any damages, costs, fines or penalties imposed on the Borrower or such Subsidiary's as a result of any Third Party Claims or any one or more of the foregoing. The costs of such Clean-Up and/or exercise of the remedies hereinabove set forth by the Bank shall be added to the indebtedness under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause the Agreement (without limitation and whether or not known any court has ordered the Clean-Up), and, said costs shall become due and payable, with interest thereon, at the Default Rate set forth in Section 2.1(b)(iii)of the Agreement. After the occurrence an Event of Default hereunder, subject to it Sections 3(g) and (h) hereof, the Bank and its employees, agents, contractors and representatives shall have access to the Property to conduct any Clean-Up that the Bank, in its sole discretion, deems appropriate; however, the Bank has no affirmative obligation to conduct any such Clean-Up, and this Rider shall not be construed as creating any such obligation or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) liability on the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member part of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsBank.
(c) Neither Any partial exercise by the Company nor Bank of the remedies set forth in Section 4(b) hereof, or any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement partial undertaking on the basis part of the argument that an L/G Bank to cure the failure of the Borrower or any Subsidiary to comply with respect the Environmental Laws, shall not obligate the Bank to which an Issuing complete the actions taken or require the Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.expend further sums to cure such non-
Appears in 1 contract
Sources: Credit and Security Agreement (Cunningham Graphics International Inc)
Indemnities. (a) Each Borrower shall immediately on demand indemnify Obligor agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender and each of their respective Related Persons (each such Person being an Issuing Bank “Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Loan Document, any Obligation (or the repayment thereof), the use or intended use of the proceeds of the Loan or any securities filing of, or with respect to, the Borrower and its Subsidiaries, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofof the Borrower, its Subsidiaries or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any Platform, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of securities or creditors (and including reasonable attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that the Obligors shall not have any liability under this Section 9.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, each Obligor waives and agrees not to assert against any Indemnitee any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person. Each of the Borrower, the Administrative Agent and the Lenders also agrees not to assert any claim against the Administrative Agent, any Lender, the Borrower, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for consequential, indirect, special or punitive damages arising out of or otherwise relating to this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby or the actual or proposed use of the proceeds of the Loan.
(b) The obligations Without limiting the foregoing, “Indemnified Matters” includes all Environmental Claims, including those arising from, or otherwise involving, any property of any the Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and Subsidiaries or any actual, alleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real property of the Borrower or any of its Subsidiaries, whether or not known not, with respect to it any such Environmental Claims, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to the Borrower or any other person) including:
of its Subsidiaries or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries through any foreclosure action, in each case except to the extent such Environmental Claims (i) are incurred solely following foreclosure by any time, waiver Secured Party or consent granted to, or composition with, following any Obligor, Secured Party having become the successor-in-interest to any beneficiary under an L/G or any other person;
Obligor and (ii) the release are attributable solely to acts of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Indemnitee.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 1 contract
Sources: Loan Agreement (Us Airways Inc)
Indemnities. (a) Each Arby’s Opco Borrower shall immediately and Co-Borrowers agree to indemnify and hold harmless each Agent, each Arranger, each Lender and each Issuer (including each Person obligated on demand indemnify a Hedging Contract the obligations under which are Hedging Contract Obligations if such Person was a Lender or Issuer at the time of it entered into such Hedging Contract) and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits (including suits by Ultimate Parent Co-Borrower, Holdco Co-Borrower, WII Co-Borrower, Parent, Arby’s Opco Borrower or liability any of their respective Subsidiaries or Affiliates), and reasonable out-of-pocket costs, disbursements and expenses, joint or several, of any kind or nature (including reasonable fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by any such Indemnitee or any of its directors, security holders or creditors or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, any Disclosure Document, any Closing Date Related Document, the Transactions, the New Transactions or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank (otherwise than by reason Arby’s Opco Borrower and Co-Borrowers shall not have any liability under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter to the extent such Indemnified Matter has resulted from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee or its Affiliates, bad faith officers, directors, employees, agents or wilful misconductrepresentatives, as determined by a court of competent jurisdiction in a final non-appealable judgment or order; and provided, further, that Arby’s Opco Borrower and Co-Borrowers shall not be required to reimburse any Agent, Lender or Issuer (in each case together with their Affiliates, officers, directors, employees, agents, attorneys and representatives) for the expenses of more than one counsel for each of them (in acting as an Issuing Bank addition to the expenses of appropriate local and special counsel). Without limiting the foregoing, “Indemnified Matters” includes (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of Ultimate Parent Co-Borrower or any of its Subsidiaries, or any of their respective predecessors in interest, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or, into or emanating from such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action associated with the operations or property of Ultimate Parent Co-Borrower or any of its Subsidiaries or any of their respective predecessors in interest, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including CERCLA and applicable state property transfer laws, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by any Agent, any Lender or any Issuer, or any Agent, any Lender or any Issuer having become the successor in interest to Ultimate Parent Co-Borrower or any of its Subsidiaries and (y) attributable to gross negligence or on behalf of) that Borrowerwillful misconduct of such Agent, such Lender or such Issuer.
(b) The obligations Arby’s Opco Borrower and the Co-Borrowers shall indemnify each Agent, Lender and Issuer for, and hold each Agent, Lender and Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Agents, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under their respective Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither Each of Ultimate Parent Co-Borrower, Holdco Co-Borrower, WII Co-Borrower, Parent and Arby’s Opco Borrower, at the Company nor request of any Indemnitee, shall have the obligation to defend, and to cause each of its Subsidiaries to defend, against any investigation, litigation or proceeding or requested Remedial Action, in each case contemplated in clause (a) above, and Ultimate Parent Co-Borrower, Holdco Co-Borrower, Parent, WII Co-Borrower, Arby’s Opco Borrower and each such Subsidiary, in any event, may participate in the defense thereof with legal counsel of Ultimate Parent Co-Borrower’s, Holdco Co-Borrower’s, Parent’s, WII Co-Borrower’s, Arby’s Opco Borrower’s or such Subsidiary’s choice. In the event that such Indemnitee requests Ultimate Parent Co-Borrower, Holdco Co-Borrower, Parent, WII Co-Borrower, Arby’s Opco Borrower or any such Subsidiary to defend against such investigation, litigation or proceeding or requested Remedial Action, Ultimate Parent Co-Borrower, Holdco Co-Borrower, Parent, WII Co-Borrower, Arby’s Opco Borrower or such Subsidiary shall be entitled promptly do so and such Indemnitee shall have the right to reject payment otherwise due have legal counsel of its choice participate in such defense. No action taken by it legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action shall vitiate or in any way impair Arby’s Opco Borrower’s, Ultimate Parent Co-Borrower’s, Holdco Co-Borrower’s and WII Co-Borrower’s obligations and duties hereunder to indemnify and hold harmless such Indemnitee.
(d) Each of Ultimate Parent Co-Borrower, Holdco Co-Borrower, WII Co-Borrower, Parent and Arby’s Opco Borrower agrees, and shall cause each of its Subsidiaries to agree, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. (a) Each Borrower shall immediately on demand indemnify agrees to indemnify, hold harmless and defend Agent, each Lender, each L/C Issuer, each Person that each L/C Issuer causes to Issue Letters of Credit hereunder and each of their respective Related Persons (each such Person being an Issuing Bank “Indemnitee”) from and against all liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any costsuch Indemnitee in any matter relating to or arising out of, loss in connection with or liability incurred as a result of (i) any Financing Document, any Operative Document, all confidential information memoranda and related materials prepared in connection with the syndication of the Facilities, any Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, any Related Transaction, or any securities filing of, or with respect to, any Credit Party, (ii) any commitment letter, proposal letter or term sheet with any Person or any contractual obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf ofof any Credit Party or any Affiliate of any of them in connection with any of the foregoing and any contractual obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons or creditors or any holders of its equity securities (and including reasonable attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that BorrowerBorrower shall not have any liability under this Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction. Furthermore, Borrower waives and agrees not to assert against any Indemnitee, and shall cause each other Credit Party to waive and not assert against any Indemnitee, any right of contribution with respect to any liabilities that may be imposed on, incurred by or asserted against any Related Person.
(b) The obligations Without limiting the foregoing, “Indemnified Matters” includes all liabilities that may be imposed on, incurred by or asserted against any Credit Party as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person arising under any Environmental Law or in connection with any environmental, health or safety condition or with any Hazardous Materials Contamination and resulting from the ownership, lease, sublease or other operation or occupation of property by any Credit Party, whether on, prior or after the date hereof, including those arising from, or otherwise involving, any property of any Borrower under this Clause will not be affected by Related Person or any actactual, omissionalleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Hazardous Materials Contamination on, matter upon or thing whichinto such property or natural resource or any property on or contiguous to any real property of any Related Person, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known not, with respect to it any such liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Related Person or the owner, lessee or operator of any other person) including:
property of any Related Person through any foreclosure action, in each case except to the extent such liabilities (i) are incurred solely following foreclosure by any time, waiver Secured Party or consent granted to, or composition with, following any Obligor, Secured Party having become the successor-in-interest to any beneficiary under an L/G or any other person;
Credit Party and (ii) the release are attributable solely to acts of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Indemnitee.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
Appears in 1 contract
Sources: Credit Agreement (DynaVox Inc.)
Indemnities. (a) Each The Borrower shall immediately on demand agrees to indemnify and hold harmless the Administrative Agent, the Arranger, the Collateral Agent, each Lender and each of their respective affiliates and each of the respective partners, officers, directors, employees, agents, advisors, attorneys and representatives of each (each, an Issuing Bank "INDEMNIFIED PARTY") from and against any costand all claims, loss damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or liability several, that may be incurred by that Issuing Bank or asserted or awarded against any Indemnified Party (otherwise than including, without limitation, in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense in connection therewith), in each case arising out of or in connection with or by reason of that Issuing Bankany Loan Document, any Obligation or any of the transactions contemplated thereby, or any actual or proposed use of the proceeds of the Loans, except to the extent such claim, damage, loss, liability or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligencenegligence or willful misconduct. In the case of an investigation, bad faith litigation or wilful other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by a Borrower, any of its directors, securityholders or creditors, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. The Borrower further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Loan Party or any of their respective securityholders or creditors for or in connection with the transactions contemplated hereby, except for direct damages (as opposed to special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings)) determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or 105 injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in acting as an Issuing Bank connection with any Remedial Action concerning the Borrower or any of its Subsidiaries; (iii) any costs or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in CLAUSES (i), (ii), (iii) and (iv) above, to the extent incurred following (A) foreclosure by the Collateral Agent or any Lender, or the Collateral Agent or any Lender having become the successor in interest to the Borrower or any of its Subsidiaries, and (B) attributable solely to acts of the Collateral Agent, such Lender or any agent on behalf of) that Borrowerof the Administrative Agent or such Lender.
(b) The obligations Borrower shall indemnify each Agent, and the Lenders for, and hold each Agent and the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither the Company nor The Borrower agrees that any Borrower shall be entitled indemnification or other protection provided to reject payment otherwise due by it any Indemnitee pursuant to this Agreement on the basis (including pursuant to this SECTION 11.5) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. (a) Each Borrower shall immediately on demand The Maker and the Guarantor agree to indemnify and hold harmless the Holder and each of its affiliates and the directors, officers, employees, partners, agents, trustees, administrators, managers, advisors and representatives of it and its affiliates (each, an Issuing Bank “Indemnified Party”) from and against, any and all claims, damages, losses, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnified Party), incurred by any Indemnified Party or asserted against any costIndemnified Party by any person (including the Maker or the Guarantor) other than an Indemnified Party, loss arising out of, in connection with, or liability incurred by that Issuing Bank (otherwise than by reason of: (i) the execution or delivery of that Issuing Bank's gross negligencethis Note or any agreement or instrument contemplated by this Note (including, bad faith without limitation, any Loan Document), the performance by the parties thereto of their respective obligations under this Note or wilful misconductany other Loan Document or the consummation of the transactions contemplated by such documents; (ii) in acting as an Issuing Bank under any L/G requested loan, extension of credit, or proposed use of the proceeds therefrom; (iii) any actual or alleged presence or release of hazardous materials on or from any property currently or formerly owned or operated by (or on behalf of) that Borrower.the Maker, the
(b) The obligations In addition to any liability or obligation of the Maker or the Guarantor to the Holder under any Borrower under other provision of this Clause will not be affected Note, the Maker and the Holder shall indemnify and hold the Holder harmless against any and all losses, claims, costs, damages or liabilities (including any expense or cost incurred in the liquidation and re- deployment of funds acquired to fund or maintain any portion of a loan or advance and reasonable out-of-pocket expenses and legal fees) incurred by any act, omission, matter the Holder as a result of or thing which, but for this Clause, would reduce, release in connection with the Maker or prejudice the Guarantor’s failure to fulfil any of its obligations under this Clause (without limitation and whether obligations, including any cost or not known expense incurred by reason of the liquidation or re-employment in whole or in part of deposits or other funds required by the Holder to it fund any bankers’ acceptance or any other person) including:
(i) any time, waiver or consent granted toletter of credit, or composition withto fund or maintain any loan, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member as a result of the Group;
(iii) Maker’s or the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any Guarantor’s failure to realise complete a drawdown or to make any payment, repayment or prepayment on the full value date required hereunder or specified by it in any notice given hereunder. A certificate from the Holder setting forth the amount or amounts necessary to compensate it for any such loss, claim, cost, damage or liability, including reasonable detail of any security;
(iv) any incapacity the basis of calculation of the amount or lack of poweramounts, authority or legal personality of or dissolution or change in and delivered to the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the CompanyMaker, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsshall be conclusive absent manifest error.
(c) Neither The Maker and the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Guarantor agrees, to the terms fullest extent permitted by applicable law, not to assert, and hereby waives, any claim against any Indemnified Party, on any theory of liability, for special, indirect, consequential or punitive damages (including, without limitation, any loss of profits or anticipated savings), as opposed to actual or direct damages, resulting from this Agreement Note or applicable law any Loan Document or regulationsarising out of such Indemnified Party’s activities in connection herewith or therewith.
Appears in 1 contract
Sources: Secured Term Promissory Note (SpringBig Holdings, Inc.)
Indemnities. (a) Each The Borrower agrees to indemnify, hold harmless and defend the Administrative Agent, each Lender, each L/C Issuer, each Secured Hedging Counterparty and each of their respective Related Persons (each such Person being an “Indemnitee”) from and against all losses, disputes, claims, damages, and liabilities of any kind (including, without limitation, any environmental liabilities) which may be incurred by, or asserted against, any such Indemnitee in connection with (i) any Loan Document, any related document, any Disclosure Document, any Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, any Related Transaction, or any securities filing of, or with respect to, any Group Member, (ii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of Securities or creditors (and including attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iii) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall immediately on demand indemnify an Issuing Bank against not have any costliability under this Section 11.4 to any Indemnitee with respect to any Indemnified Matter, loss or and no Indemnitee shall have any liability incurred by that Issuing Bank with respect to any Indemnified Matter other than (to the extent otherwise than by reason of that Issuing Bank's liable), to the extent such liability has resulted from (1) the gross negligence, bad faith or wilful misconductwillful misconduct of such Indemnitee or its Related Persons, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (2) a material breach of any obligations of such Indemnitee under any Loan Document by such Indemnitee or its Related Persons as determined by a court of competent jurisdiction in acting as an Issuing Bank under a final non-appealable judgment or order or (3) arises out of any litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any litigation, investigation or proceeding that is brought by or against the Administrative Agent, any L/G requested by (C Issuer or on behalf ofthe Lead Arranger, acting in its capacity as such) that Borrower.does not involve any act or omission of Holdings, the Borrower or any of its Subsidiaries; provided, further that, in the case of legal fees and expenses of the Indemnitees, the Borrower shall not have any liability for the reimbursement of more than one outside counsel (and, in the event of an actual conflict between or among an Indemnitee or Indemnitees where the applicable Indemnitee or Indemnitees inform the Borrower in writing of such conflict, one additional outside counsel, as may be reasonably required, to all affected Indemnitees, taken as a whole) and one local counsel in each relevant material jurisdiction as may be reasonably required (which may include a single special counsel acting in multiple jurisdictions). Each Indemnitee shall be 146 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(b) The obligations Without limiting the foregoing, “Indemnified Matters” includes all Environmental Liabilities, including those arising from, or otherwise involving, any property of any Borrower under this Clause will not be affected by Related Person or any actactual, omissionalleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, matter upon or thing whichinto such property or natural resource or any property on or contiguous to any real property of any Related Person, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known not, with respect to it any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Related Person or the owner, lessee or operator of any other person) including:
property of any Related Person through any foreclosure action, in each case except to the extent such Environmental Liabilities (i) are incurred solely following foreclosure by any time, waiver Secured Party or consent granted to, or composition with, following any Obligor, Secured Party having become the successor-in-interest to any beneficiary under an L/G or any other person;
Loan Party and (ii) the release are attributable solely to acts of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingssuch Indemnitee.
(c) Neither the Company nor any The Borrower shall not be entitled to reject payment otherwise due by it pursuant to this Agreement on liable for any settlement of any litigation, investigation or proceeding effected without the basis written consent of the argument that an L/G Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any litigation, investigation or proceeding is settled with respect the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such litigation, investigation or proceeding, the Borrower agrees to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant indemnify and hold harmless each Indemnitee to the terms of this Agreement or applicable law or regulationsextent and in the manner set forth in paragraph (a) above.
Appears in 1 contract
Sources: Credit Agreement (White Mountains Insurance Group LTD)
Indemnities. (a) Each Borrower shall immediately on demand agrees to indemnify and hold harmless the Administrative Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representatives, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including reasonable and documented fees and disbursements of counsel to any such Indemnitee, but excluding taxes (other than those covenanted to be paid by the Borrowers under this Agreement) imposed on or measured by the Indemnitee’s net income and franchise taxes, imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such Indemnitee is organized or in which its principal office or Applicable Lending Office is located) which may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or in contract, tort or otherwise, relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”). Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of Terra Industries or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in connection with any Remedial Action concerning Terra Industries or any of its Subsidiaries; (iii) any costs or liabilities incurred in connection with any Environmental Lien in respect of any assets or properties of Terra Industries and its Subsidiaries; (iv) any costs or liabilities incurred in connection with any other matter (concerning Terra Industries or any of its Subsidiaries) under any Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to Terra Industries or any of its Subsidiaries, or the owner, lessee or operator of any property of Terra Industries or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent incurred following (A) foreclosure by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to Terra Industries or any of its Subsidiaries, and (B) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of the Administrative Agent, such Lender or such Issuer; provided, however, that Issuing Bank (otherwise than the Borrowers shall not have any obligation under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter caused by reason or resulting from the gross negligence or willful misconduct of that Issuing Bank's gross negligenceIndemnitee, bad faith as determined by a court of competent jurisdiction in a final non-appealable judgment or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrowerorder.
(b) The obligations Each Borrower shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither the Company nor Each Borrower agrees that any Borrower shall be entitled indemnification or other protection provided to reject payment otherwise due by it any Indemnitee pursuant to this Agreement on the basis (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant Obligations and (ii) inure to the terms benefit of any Person who was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. Borrower agrees to indemnify, pay, and hold Agent, each Lender, each L/C Issuer and their respective Affiliates, officers, directors, employees, agents, and attorneys (athe “Indemnitees”) Each harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs and expenses (including all reasonable fees and expenses of counsel to such Indemnitees) of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Indemnitees in any matter relating to or arising out of, in connection with or as a result of (i) any Loan Document, any Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit or any securities filing of, or with respect to, any Credit Party, (ii) any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its officers, directors or agents (and including reasonable attorneys’ fees in any case), whether or not any such Indemnitee, officer, director or agent is a party thereto, and whether or not based on any securities or commercial law or regulation or any other requirement of law or theory thereof, including common law, equity, contract, tort or otherwise or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, that Borrower shall immediately on demand indemnify have no obligation to an Issuing Bank against Indemnitee hereunder with respect to any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's Indemnified Matter to the extent resulting from the gross negligence, bad faith or wilful misconduct) in acting willful misconduct of that Indemnitee or its Affiliates, officers, directors, employees, agents or attorneys as an Issuing Bank under any L/G requested determined by (a court of competent jurisdiction or on behalf of) that Borrower.
(b) The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant disputes among Indemnitees. If and to the terms of this Agreement or extent that the foregoing undertaking may be unenforceable for any reason, Borrower agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law or regulationslaw.
Appears in 1 contract
Sources: Credit Agreement (TNS Inc)
Indemnities. (a) Each Borrower shall immediately on demand The Parent and the Borrowers jointly and severally agree to and hereby do indemnify and hold harmless each Administrative Agent, the Collateral Agent, Arranger, Bookrunner, Co-Manager, Issuers, Swingline Lender and Lender (together with their respective Affiliates (and controlling persons) and the respective officers, directors, employees, agents, members (and successors and assigns) of each of the foregoing, each such Person being an Issuing Bank “Indemnitee”) from and against any costand all claims, loss damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or liability nature (including reasonable, documented and customary fees, disbursements and expenses of financial and legal advisors to any such Indemnitee, provided that legal advisors shall be limited to the reasonable and documented fees, disbursements and expenses of (x) one firm of counsel for all Agents, Lenders and Issuers, (y) one firm of local counsel in each relevant jurisdiction, and (z) in the case of an actual or perceived conflict of interest where the person affected by such conflict retains its own counsel, of another firm of counsel for such affected person in each relevant jurisdiction) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrowers or any of its Affiliates, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit, the Business Combination or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that Issuing Bank the Borrowers shall not have any obligation under this Section 11.4 to an Indemnitee with respect to (otherwise than i) any Indemnified Matter caused by reason of that Issuing Bank's or resulting from the gross negligence, bad faith or wilful misconductwillful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order or order of an arbitral tribunal, (ii) a material breach of the Loan Documents by such Indemnitee, as determined by a court of competent jurisdiction in acting a final non-appealable judgment or order or order of an arbitral tribunal and (iii) any action brought by one Indemnitee against another Indemnitee (except in its capacity as an Issuing Bank Agent) which does not involve an act or omission by the Parent or any of its Affiliates or (iv) any settlement entered into by such Indemnitee without the Parent’s written consent (such consent not to be unreasonably withheld, conditioned or delayed); provided that the foregoing indemnity will apply to any such settlement in the event that the Parent was offered the ability to assume the defense of the action that was the subject matter of such settlement and elected not to so assume; provided, further, that if there is a final and non-appealable judgment by a court of competent jurisdiction, the Parent agrees to indemnify and hold harmless each Indemnitee 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 11.4. Without limiting the foregoing, but subject to the express limitations of the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Parent, the Borrowers, or any of their respective Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Parent, the Borrowers, or any of their respective Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any L/G requested Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Parent or any of its Subsidiaries, or the owner, lessee or operator of any property of the Parent or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure (or deed in lieu thereof) by any Administrative Agent, any Lender or any Issuer, or any Administrative Agent, the Collateral Agent, any Lender or any Issuer having become the successor in interest to the Parent, the Borrowers, or any of their respective Subsidiaries and (y) attributable solely to acts of such Administrative Agent, such Lender or such Issuer or any agent on behalf ofof such Administrative Agent, such Lender or such Issuer. This Section 11.4(a) shall not apply with respect to Taxes other than any Taxes that Borrowerrepresent losses or damages arising from any non-Tax claim.
(b) The obligations Parent and each Borrower shall and does hereby jointly and severally indemnify each Agent, each Lender and each Issuer for, and hold each Agent, each Lender and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, any Lender and any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Borrower under this Clause will not be affected by any act, omission, matter Loan Party or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under Subsidiaries in connection with the transactions contemplated by this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedingsAgreement.
(c) Neither Promptly after receipt by an Indemnitee of service of any complaint or the Company nor commencement of any action or proceeding with respect to an Indemnified Matter, such Indemnitee will notify the Parent in writing of such complaint or of the commencement of such action or proceeding, but failure to so notify the Parent will relieve the Parent or the Borrowers from the obligation to indemnify such Indemnitee only if and only to the extent that such failure results in the forfeiture by the Parent or the Borrowers of substantial rights and defenses that actually and materially prejudice the Parent or the Borrowers, and will not in any event relieve the Parent or the Borrowers from any other obligation or liability that the Parent or the Borrowers may have to any Indemnitee otherwise than in accordance with the provisions hereof. If the Parent or any Borrower shall so elects following its acknowledgment of its obligation to indemnify the Indemnitee, or if requested by such Indemnitee, the Parent or such Borrower will assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to such Indemnitee and the payment of the fees and disbursements of such counsel. In the event, however, such Indemnitee reasonably determines in its judgment that having common counsel would present such counsel with a conflict of interest or if the defendants in or targets of any such action or proceeding include an Indemnitee and the Parent or the Borrowers and such Indemnitee reasonably concludes that there may be entitled legal defenses available to reject payment otherwise due by it or other Indemnitees that are different from or in addition to those available to the Parent or the Borrowers, or if the Parent or the Borrowers fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Indemnitee in a timely manner, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Parent and the Borrowers will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the Parent and the Borrowers will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for such Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Parent or the Borrowers assume, the Indemnitee will have the right to participate in such litigation and to retain its own counsel at such Indemnitee’s own expense.
(d) The Parent and the Borrowers jointly and severally agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive the terms termination of this Agreement and the payment in full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or applicable law or regulationsany other Loan Document.
Appears in 1 contract
Indemnities. Without limiting any other rights which the Indemnified Parties may have under the Transaction Documents or any related documents or under applicable law, each of the Centralising Unit and each Seller hereby agrees to indemnify the Purchaser, the Agent, the Joint Lead Arrangers, the Calculation Agent, the Depositor, the Issuers, the Liquidity Banks, each of their respective affiliates and each officer, director, employee and agent of any of the foregoing (each an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, liabilities, costs and expenses (including reasonable attorneys' fees and disbursements) (and, in each case, any value added tax thereon) in any way arising out of the Transaction Documents or any documents related to the Securitisation Transaction (excluding, however, any of the foregoing (a) Each Borrower shall immediately to the extent resulting from the gross negligence (faute lourde) or willful misconduct (dol) on demand indemnify the part of such Indemnified Party or the breach by an Issuing Bank Indemnified Party of material obligations under any Transaction Document or any related document, as finally determined by a court of competent jurisdiction), or (b) constituting recourse for Sold Receivables which are not paid or are uncollectible on account of the insolvency, bankruptcy or inability to pay of the applicable obligor) (collectively, "INDEMNIFIED AMOUNTS"), including, without limitation, any and all damages, losses, claims, liabilities, costs and expenses incurred by or asserted against any costIndemnified Party as a result of:
(a) any claims, loss actions, suits or liability incurred proceedings commenced by that Issuing Bank (otherwise than by reason any Debtor or any of that Issuing Bank's gross negligenceits affiliates or any third party in connection with any of the Sold Receivables, bad faith the transactions out of which they arose or wilful misconduct) in acting as an Issuing Bank under the goods or services the sale or provision of which gave rise to any L/G requested by (or on behalf of) that Borrower.Sold Receivables;
(b) The obligations reliance on any representation or warranty or statement made or deemed made by or on behalf of any Borrower Seller, the Centralising Unit or GOODYEAR DUNLOP TIRES EUROPE BV under or in connection with any Transaction Document or any related agreement or any certificate or report delivered pursuant hereto or thereto that, in either case, shall have been false or incorrect when made or deemed made;
(c) any failure of any Seller, the Centralising Unit or GOODYEAR DUNLOP TIRES EUROPE BV to perform its duties or obligations under this Clause will not be affected Agreement or the other Transaction Documents;
(d) any governmental investigation, litigation or proceeding related to this Agreement or in respect of any Sold Receivable;
(e) the failure by any act, omission, matter Seller or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause affiliates to comply with any applicable law with respect to any Sold Receivable (without limitation and whether or not known to it or any contract by which it arose or by which it is evidenced or governed), or the nonconformity of any Sold Receivable (or such contract) with any such applicable law, or any action taken by any of the Sellers or their affiliates or agents in the enforcement or collection of any Sold Receivable;
(f) any failure of the Purchaser to have and maintain ownership of the Sold Receivables, free and clear of any Liens other personthan those contemplated in the Transaction Documents, or any attempt by any person to avoid, rescind or set aside any sale of Purchasable Receivables by any Seller to the Purchaser as contemplated by the Transaction Documents;
(g) including:any dispute, claim, offset or defense (other than discharge in bankruptcy or similar defense arising from the Debtor's insolvency or inability to pay) of any Debtor to the payment of any Sold Receivable;
(h) the failure of any Seller to pay when due any value added taxes or other taxes payable in connection with any of the Receivables or the transactions out of which they arose;
(i) any timecommingling of collections on Sold Receivables with any other monies of the Seller, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G the Centralising Unit or any other personof their Affiliates;
(iij) the release use by the Sellers or their Affiliates of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member monies received by them in payment of the GroupInitial Purchase Price or Deferred Purchase Price of Sold Receivables;
(iiik) the taking, variation, compromise, exchange, renewal any products liability or release ofenvironmental claim, or refusal personal injury or neglect to perfect, take up or enforce, any rights againstproperty damage claim, or security over assets of, any Obligor, any beneficiary under an L/G other similar or other person related claim or any non-presentation or non-observance action of any formality sort whatsoever arising out of or other requirement in respect of connection with goods, merchandise or services which relates to any instrument or any failure to realise the full value of any securitySold Receivables;
(ivl) any incapacity or lack a Payment and/or a Transfer Deed ceases to achieve a perfect transfer of power, authority or legal personality of or dissolution or change Purchasable Receivables as set out in the members or status of an Obligor or any beneficiary under an L/G or any other personReceivables Purchase Agreement;
(vm) any amendment Conformity Warranty for Sold Receivables made by a Seller under Article 19 (however fundamentalConformity Warranties for Purchasable Receivables) or replacement of a Finance Document consented (without regard to by the Company, any L/G or any other document or security;
(viknowledge therein) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither the Company nor any Borrower shall be entitled is found to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant inaccurate at the date it was made. The Sellers and the Centralising Unit shall pay on demand to the terms of this Agreement or applicable law or regulationsPurchaser or, at the Purchaser's direction, to the relevant Indemnified Parties all amounts necessary to indemnify the Indemnified Parties from and against any and all Indemnified Amounts.
Appears in 1 contract
Sources: General Master Purchase Agreement (Wingfoot Ventures Eight Inc.)
Indemnities. In addition to the payment of expenses pursuant to Section 9.05 hereof, the Borrower agrees to indemnify, pay and hold the Agent, the Syndication Agent, each Issuing Bank, the Documentation Agent and each Bank and their officers, directors, employees, agents, consultants, auditors, Affiliates and attorneys (a) Each Borrower shall immediately on demand indemnify an Issuing Bank collectively, called the "Indemnitees"), harmless from and against any costand all liabilities, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligenceobligations, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
(b) The obligations losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any Borrower under this Clause will not be affected by kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any actinvestigative, omissionadministrative or judicial proceeding commenced or threatened, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by or asserted against that Indemnitee, in any other person) including:
matter arising from (i) any timethe occurrence of an Event of Default hereunder or under the other Loan Documents, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
(ii) the release use or intended use of the proceeds of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
Loans, (iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any non-presentation or non-observance exercise of any formality right or remedy hereunder or under any of the other requirement in respect of any instrument Loan Documents or any failure to realise the full value of any security;
(iv) any incapacity error, failure or lack of power, authority or legal personality of or dissolution or change delay in the members performance of any of the Banks' obligations under this Agreement caused by natural disaster, fire, war, strike, civil unrest, error in inoperability of communication equipment or status of an Obligor or any beneficiary under an L/G lines or any other person;
circumstances beyond the control of the Banks (v) any amendment (however fundamental) or replacement of a Finance Document consented to by the Company"Indemnified Liabilities"); provided, any L/G or any other document or security;
(vi) any unenforceabilityhowever, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
(vii) any insolvency or similar proceedings.
(c) Neither that the Company nor any Borrower shall be entitled have no obligation to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G Indemnitee hereunder with respect to which an Issuing Bank claims payment should not have been issued Indemnified Liabilities arising from the gross negligence or should not have been issued under its terms by willful misconduct of that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.Indemnitee. 270134563
Appears in 1 contract