Indemnities. (a) 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender. (b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement. (c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any 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) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Arranger, 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 and each 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, representativetrustees, 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 condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Obligation, any Letter of Credit 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 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 not have any obligation liability under this Section 11.4 to an Indemnitee (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 taxes a dispute among Indemnitee (and amounts relating theretoother than a claim against any Agent or its affiliates solely in its capacity as Agent, 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 willful misconduct of such Lead Arranger or affiliate, as applicable), the indemnification for which shall be governed solely and exclusively by Section 2.16, and ; or (iii) to arising from a material breach of the obligations of an Indemnitee with respect to any Indemnified Matter that does not involve an act or omission under this Agreement as determined by a final, non-appealable judgment of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemniteea court of competent jurisdiction. Without limiting the foregoing, “Indemnified Matters Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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; migrating from such property, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien on Real Property or any asset owned or leased by the Borrower or any of its Subsidiaries and (iv) any costs or liabilities concerning the Borrower or any of its Subsidiaries, including their operations and owned or leased Real Property, incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (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 the Borrower or any Warnaco Entity, of its Subsidiaries and (By) to the extent attributable solely to acts or omissions of the Arrangers, the Facility Agentsany Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents such Agent, such Lender or such LenderIssuer or any other Indemnitee.
(b) Group and the The Borrower shall, jointly and severally, shall indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each such Agent, each Arranger, each Lender and each Issuer and harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arrangerthe Arrangers, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, 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 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any 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) Group The Company agrees to, and the Borrower agreeshall cause each other Loan Party to, jointly and severally, to indemnify and hold harmless each Agent, each Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIIIX) (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured 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 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 Company shall not have any obligation liability under this Section 11.4 (i) 14.17 to an Indemnitee with respect to any Indemnified Matter caused by or resulting to the extent such liability has resulted 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; provided, (ii) with respect further, that the Company shall not be required to taxes (reimburse the Indemnitees for the fees and amounts relating thereto), expenses of more than one joint counsel for the indemnification Administrative Agent and the Collateral Agent and one joint counsel for which the other Indemnitees unless such representation 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 result in a conflict of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemniteeinterest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any Warnaco Entity of its Subsidiaries involving any property subject to a Collateral Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants 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 Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Lien; Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Company or any Warnaco Entity 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 (A) foreclosure by any Facility the Collateral Agent, at the direction of the Administrative Agent, any Lender or any IssuerLender, or any Facility Agent, Agent or any Lender or any Issuer having become the successor in interest to the Company or any Warnaco Entity, of its Subsidiaries and (By) to the extent attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents such Agent or such Lender.
(b) Group The Company shall, and shall cause each other Loan Party to, indemnify the Agents and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each Lender and each Issuer Lenders for, and hold each Agent, each Arranger, each Lender the Agents and each Issuer the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group 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 Borrower agreeCompany, jointly 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 to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and severallylead 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 reasonable for a secondary counsel; 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. No action taken by 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 (including pursuant to this Section 11.414.17) or any other Loan Document shall (i) survive payment in full Full Satisfaction of the Secured Payment Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any 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) Group and the The Borrower agree, jointly and severally, 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 neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender.
(b) Group and the The Borrower shall, jointly and severally, 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the The Borrower agree, jointly and severally, agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any 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. In the event of any registration of Registrable Shares pursuant to this Section 5.3:
(ai) Group and the Borrower agree, jointly and severally, to Puyi will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Fanhua Party and each Issuer and each of their respective Affiliatesany underwriter for such Fanhua Party, and each of person, if any, who controls the directorsFanhua Party or such underwriter, 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 claimslosses, damages, claims, liabilities, obligationsjoint 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented, or (including 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 reasonable fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third-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 witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action or proceeding; provided, however, that neither Group nor the Borrower shall Puyi will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure 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 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 Agentsa Fanhua Party, such Lender underwriter or such Issuer 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 agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the selling shareholder, the underwriter or any Warnaco Entity controlling person of the selling shareholder or the underwriter, and regardless of any sale in connection with such offering by the transactions contemplated selling shareholder. Such indemnity shall survive the transfer of securities by this Agreementa selling shareholder.
(cii) Group Each Fanhua Party participating in a registration hereunder will indemnify and the Borrower agreehold harmless Puyi, jointly each other Fanhua Party participating in such registration, any underwriter for Puyi, and severallyeach person, that if any, who controls Puyi or such underwriter or such other Fanhua Party, from and against any indemnification and all losses, damages, claims, liabilities, costs or other protection provided to any Indemnitee pursuant to this Agreement expenses (including pursuant any amounts paid in any settlement effected with the selling shareholder’s reasonable consent) to this Section 11.4) which Puyi or any such controlling person and/or any such underwriter and/or such other Loan Document shall 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) survive payment any untrue or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 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 Person who 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 time underwriter of any 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 action if such settlement is effected without the consent of such Fanhua Party, as the 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 Indemnitee under this Agreement indemnified party pursuant to the provisions 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, such indemnified party will, if 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), 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 Loan Documentindemnifying 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 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 (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 entry of any judgment or 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 to such claim or litigation.
(iv) 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 terms thereof shall be entitled to contribution to liabilities and expenses. 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Fanhua Party exceed the net proceeds from the offering received by such Fanhua Party.
Appears in 3 contracts
Sources: Securities Exchange Agreement (Hu Yinan), Securities Exchange Agreement (Fanhua Inc.), Securities Exchange Agreement (Puyi, Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements obligations and expenses (and losses relating to Borrower’s market activities as a consequence of becoming, or of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel any losses in connection therewith or with respect to this Agreement) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit warranties contained in Section 7 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to breach by Lender of any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee its covenants or agreements 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 the Facility Agents or such Lenderthis Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, 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 Warnaco Entity in connection with the transactions contemplated (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement.
(c) Group and the Borrower agree, jointly and severally, that In case any indemnification claim or other protection provided litigation which might give rise to any Indemnitee pursuant to this Agreement (including pursuant to obligation of a party under this Section 11.412 (each an “Indemnifying Party”) shall come to the 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 any other Loan Document 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 participate in and, if (i) survive payment in full the good faith judgment of the Secured Obligations 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) inure the Indemnifying Party admits that this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to direct the defense of any claim at its expense, but such defense shall be conducted by legal counsel reasonably satisfactory to the benefit Indemnified Party. An Indemnified Party shall not make any settlement of any Person who was at any time an Indemnitee claim or litigation under this Agreement or any other Loan DocumentSection 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) Group and the Each Borrower agree, jointly and severally, to shall immediately on demand 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 Issuing Bank against any and all claimscost, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind loss or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) which may be imposed on, liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank’s gross negligence, bad faith or asserted against wilful misconduct) in acting as an Issuing Bank under 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, L/G requested by (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, behalf of) that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such LenderBorrower.
(b) Group 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 Borrower shallrelease 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, jointly and severallyvariation, indemnify each Agentcompromise, each Arrangerexchange, each Lender and each Issuer forrenewal or release of, and hold each Agentor refusal or neglect to perfect, each Arrangertake up or enforce, each Lender and each Issuer harmless from and any rights against, or security over assets of, any and all claims for brokerage commissionsObligor, fees and any beneficiary under an L/G or other compensation made against any Agent, Arranger, Lender person or any Issuer for any broker, finder non-presentation or consultant with respect to any agreement, arrangement or understanding made by or on behalf non-observance of any Warnaco Entity formality or other requirement in connection with respect of any instrument or any failure to realise the transactions contemplated 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 this Agreementthe 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) Group and Neither the Company nor any Borrower agree, jointly and severally, that any indemnification or other protection provided shall be entitled to any Indemnitee reject payment otherwise due by it pursuant to this Agreement (including 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 this Section 11.4) or any other Loan Document shall (i) survive payment in full the terms of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentapplicable 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) Group and The Borrower will indemnify each of the Borrower agree, jointly and severally, to indemnify and hold harmless each Arranger, each Lender, the Collateral Agent, each Lender the Administrative Agent and each Issuer and each of their respective Affiliatesaffiliates and their officers, and each of the directors, officers, employees, agents, representative, attorneys, consultants agents 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 IIIeach, an "Indemnified Party") (and hold each such Person being an “Indemnitee”) Indemnified ----------------- Party harmless from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements liabilities and expenses of any kind or nature (including reasonable fees and disbursements expenses of counsel and, with respect to any such Indemniteethe Collateral Agent, reasonable allocated costs and expenses of in-house counsel and legal staff) which that may be imposed on, incurred by or asserted or awarded against any such Indemnitee Indemnified Party, in each case arising out of or in connection with with:
(A) this Agreement and any other Loan Documents, any of the transactions contemplated herein or arising out 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 a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct.
(b) In the case of any investigation, litigation or proceedingother proceeding to which the indemnity in this Section 14.5(a) applies, the indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified Party or any such Indemnitee other Person or any Indemnified Party is otherwise a party theretothereto and whether or not the transactions contemplated hereby are consummated.
(c) The Borrower also shall not to assert any claim against the Administrative Agent, whether directthe 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 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 punitive damages arising out of or otherwise 123 relating to 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, the transactions contemplated herein or the use actual or intended 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 Loans or Letters of Credit or in connection with any investigation Interest Period for such Advance, as a result of any potential matter covered hereby (collectivelyrepayment or, prepayment or acceleration of the “Indemnified Matters”); providedmaturity of the Advances pursuant to Section 12.1 or for any other reason, however, that neither Group nor the Borrower shall pay to the 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 making of any payment of an Advance on a day that is not have any obligation under this Section 11.4 (i) to an Indemnitee the last day of the applicable Interest Period with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender.
(be) Group and the The Borrower shall, jointly and severally, 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 Agentloss, Arranger, cost or expense incurred by any Lender or any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf as a result of any Warnaco Entity failure to fulfill on or before the date specified in connection with any Disbursement Claim for a requested Advance the transactions contemplated applicable conditions set forth in Articles 10.1 and 11.1, including any loss (including loss of anticipated profits), cost or expense incurred by this Agreement.
(c) Group and reason of the Borrower agree, jointly and severally, that any indemnification liquidation or reemployment of deposits or other protection provided funds acquired by such Lender to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment fund its participation in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentsuch requested Advance.
Appears in 3 contracts
Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
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) Group any actual or alleged breach of your representations, warranties or obligations under the Agreement;
(b) 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 Borrower agreeextent 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, jointly and severallyyou will indemnify, to indemnify protect and hold us 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 claimsLoss, damages, liabilities, obligations, losses, penaltiessuits, actions, judgments, suits, costs, disbursements and expenses of any kind proceedings 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 claims resulting from or arising out of any investigation, litigation act or proceeding, omission by any person 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 such Indemnitee is a party theretodefault, 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 your act or omission of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting under 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 Agreement or any contiguous real estate; (ii) any costs Order or liabilities incurred in 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 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 the Facility Agents or such Lender.Contract;
(b) 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 breach by or on behalf you of any Warnaco Entity in connection with the transactions contemplated by this Agreement.Applicable Laws;
(c) Group any representation or warranty made or given by you under the Agreement proving to be untrue or incorrect;
(d) any error, omission, fraud, malfeasance, negligence, misappropriation or criminal act or omission by you or by any of your clients, employees, agents or Authorised Persons, consultants or servants;
(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 procedures;
(g) anything lawfully done by us in accordance with, pursuant or incidental to the Borrower agreeAgreement;
(h) any instruction, jointly and severally, that any indemnification request or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall direction given by you;
(i) survive payment in full by reason of the Secured Obligations and (ii) inure to the benefit Fortune Prime Global complying with any direction, request or requirement of any Person who was at any time an Indemnitee under this Agreement Applicable Laws or any Underlying Market, any government body or any regulatory body having jurisdiction over Fortune Prime Global or any hedge counterparty; or
(j) arising from and in connection with or in any way related to Fortune Prime Global ingood faith accepting and acting on instructions received by facsimile transmission, email or by other Loan Documentmeans of any kind which are signed by orpurported to be signed by you or any Authorised Persons.
Appears in 3 contracts
Sources: Client Agreement, Client Agreement, Client Agreement
Indemnities. (a) Group Lender and the Borrower Ship Finance hereby agree, jointly and severally, to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements 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 of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel any losses in connection therewith or with respect to this Agreement) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with with, (i) any breach by Lender 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 Ship Finance of any of the Loans its representations or Letters of Credit or warranties contained in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 order7, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively any breach by Section 2.16, and (iii) to an Indemnitee with respect to any Indemnified Matter that does not involve an act Lender or omission Ship Finance of any Warnaco Entity of its covenants or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting the foregoingagreements in this Agreement, Indemnified Matters include in each case under (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 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 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 that it has been finally adjudicated by a court of competent jurisdiction, evidenced by a final non-appealable order, that Borrower is liable to the Lender with respect to such claims, or (Aiii) foreclosure any Taxes relating to any payments made or to be made by any Facility Agent, any Lender Borrower or any Issuerof its affiliates to Ship Finance, Lender, or any Facility Agent, any Lender of their respective subsidiaries 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 the Facility Agents or such Lenderaffiliates under this Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forShip Finance and their affiliates and their former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, or in connection with (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement, in each case to the extent that it has been finally adjudicated by a court of competent jurisdiction, evidenced by a final non-appealable order, that Borrower is liable to the Lender or any Issuer for any broker, finder or consultant with respect to such claims.
(c) In case any agreementclaim or litigation which might give rise to any obligation of a party under this Section 12 (each an "Indemnifying Party") shall come to the attention of the party seeking indemnification hereunder (the "Indemnified Party"), arrangement 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 understanding made 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 participate in the defense of any claim and, to the extent that it shall wish, jointly with any other Indemnifying Party similarly notified, to assume the 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 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 such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnified Party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that Indemnified Party. An Indemnified Party shall not make any indemnification settlement of any claim or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to litigation under this Section 11.4) or any other Loan Document shall (i) survive payment in full 12 without the written consent of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan DocumentIndemnifying 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) Group and the The Borrower agreeagrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Administrative Agent, each Lender and 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 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreement, (i) any other Loan Document, any Secured ObligationDisclosure Document, any Obligation (or the repayment thereof), any Letter of Credit or any actCredit, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of any Loan or the use of the Loans any Letter of Credit, or Letters 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 or on behalf of Credit any Group Member or any Affiliate of any of them in connection with any investigation of the foregoing and any potential matter covered hereby 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 neither Group nor the Borrower shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (ii) with respect to taxes (and amounts relating thereto). Furthermore, the indemnification for which shall be governed solely Borrower waives and exclusively by Section 2.16agrees not to assert against any Indemnitee, and (iii) shall cause each other Loan Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, “Indemnified Matters include (i) Matters” includes all Environmental Liabilities and Costs Liabilities, including those arising from from, or connected with the pastotherwise involving, present or future operations any property of any Warnaco Entity involving Related Person or any property subject to a Collateral Documentactual, alleged or prospective damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real estate; (ii) property of any costs Related Person, whether or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whethernot, with respect to any of such mattersEnvironmental Liabilities, such any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in successor-in-interest to any Warnaco Entity, Related Person or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosureRelated Person through any foreclosure action, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, each case except to the extent such Environmental Liabilities (i) are incurred solely following (A) foreclosure by any Facility Agent, Secured Party or following any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer Secured Party having become the successor in successor-in-interest to any Warnaco Entity, Loan Party and (Bii) are attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such LenderIndemnitee.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
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) Group and The Borrowers shall indemnify the Borrower agreeAdministrative Agent, jointly and severallythe Collateral Agent, to indemnify and hold harmless each the Lead Arranger, each the Documentation Agent, each Lender the Syndication Agent, the Issuing Bank and each Issuer and each of their respective AffiliatesLender, and each Related Party 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) Persons (each such Person being called an “Indemnitee”) from against, and against hold each Indemnitee harmless from, on an after-Tax basis, any and all losses, claims, damages, liabilities, obligations, losses, penalties, actionsliabilities and related expenses, judgmentsincluding the reasonable fees, suits, costs, disbursements and expenses of any kind or nature (including reasonable fees charges and disbursements of any counsel to for any such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any 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 such Letter of Credit), (iii) the handling of the Funding Accounts, Collection Account, any account subject to a Blocked Account Agreement and Collateral of Borrowers as herein provided, (iv) the Agent, Issuing Bank or arising out Lender relying on any instructions of the Administrative Borrower, (v) any investigationactual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrowers or any of their Subsidiaries, litigation or proceedingany Environmental Liability related in any way to the Borrowers or any of their Subsidiaries, or (vi) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, 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, theory and regardless of whether any Secured Obligation, any Letter of Credit Indemnitee or any actLoan Party is a party thereto; provided that such indemnity shall not, event or transaction related or attendant as to any thereofIndemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or the use or intended use related expenses are finally determined by a court 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 not competent jurisdiction to have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting resulted from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction such Indemnitee in a final non-appealable judgment nonappealable order or order, (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 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 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 the Facility Agents or such Lenderjudgment.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 3 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Indemnities. In the event of any registered offering of Common Stock pursuant to this Agreement (a) Group for purposes of this Section 7, holders of Other Registrable Shares shall also be referred to as “Holders” and the Borrower agree, jointly and severally, to “Registrable Shares” shall include Other Registrable Shares):
7.1 The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder and each Issuer and each of their respective Affiliatesany underwriter for such Holder, and each of person, if any, who controls the directorsHolder or such underwriter, 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 claimslosses, damages, claims, liabilities, obligationsjoint 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon (a) any untrue statement or alleged untrue statement of any kind material fact contained in any registration statement or nature included in any prospectus, as amended or supplemented, or (including 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 fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third-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 witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action or proceeding; provided, however, that neither Group nor the Borrower 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; 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 7.1 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. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of 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.
7.2 Each Holder participating in a registration hereunder 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 stockholder’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 (a) any untrue or alleged untrue statement of any 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 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 such 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 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 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 7.1 or 7.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (a) 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 (c) 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 obligation 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 11.4 7.1 or 3.1.2 but it is judicially determined (i) to an Indemnitee with respect to any Indemnified Matter caused by the entry of a final judgment or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined 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 a final non-appealable judgment such case notwithstanding the fact that this Section 7 provides for indemnification in such case, or order(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 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 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) with respect no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16, contribution from any person or entity who was not guilty of such fraudulent misrepresentation; and (iii) no Holder shall be required to an Indemnitee with respect to contribute 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 amount in 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 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 excess of the Arrangers, the Facility Agents, amount such Lender or such Issuer or any agent on behalf of the Facility Agents or such LenderHolder would have been required to indemnify if indemnification had been applicable in accordance with its terms.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 3 contracts
Sources: Registration Rights Agreement (Outbrain Inc.), Share Purchase Agreement (Outbrain Inc.), Share Purchase Agreement (Outbrain Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, to The Borrowers shall indemnify and hold harmless each Arrangerthe Agents, each AgentLender, each Lender Issuer, the Arrangers and each Issuer and each of their respective AffiliatesAffiliates and their, and each of the their Affiliates’, branches, directors, officers, employees, agents, representativepartners, attorneys, consultants trustees or advisors and advisors of or to any of other representatives (collectively 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 “IndemniteeIndemnitees”) from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, reasonable and documented out-of-pocket expenses and disbursements and expenses of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) whatsoever which may at any time 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 way 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 (but, in the case of any 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 matter covered hereby conflict of interest between Indemnitees (collectivelywhere the Indemnitee(s) affected by such conflict of interest informs the Borrowers in writing of such conflict of interest), the “Indemnified Matters”); provided, however, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) (i) to an Indemnitee with respect to any Indemnified Matter caused by the execution, delivery, enforcement, performance or resulting 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 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 administration 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 Loan Document or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 letter or understanding made by or on behalf of any Warnaco Entity instrument delivered in connection with the transactions contemplated by this Agreement.
thereby or the consummation of the transactions contemplated thereby, (cii) Group and any Commitment, Loan or Letter of Credit or the Borrower agree, jointly and severally, that any indemnification use or other protection provided to any Indemnitee pursuant to this Agreement proposed use of the proceeds therefrom (including pursuant any refusal by an Issuer to this Section 11.4honor 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 Document shall (i) survive payment in full Party, or any Environmental Liabilities arising out of the Secured Obligations 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 such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any 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 each case of clauses (x) and (iiy), as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (z) inure any dispute solely among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent, collateral agent, issuer of Letters of Credit, or arranger or any similar role under the Facilities and other than any claims arising out of any 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 benefit 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 Person who was at information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement (other than damages arising from the gross negligence, bad faith or willful misconduct of such Indemnitee or of any time an affiliate, director, officer, employee or agent of such Indemnitee under 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 DocumentDocument 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 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 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 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 Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. Without limiting the provisions of Sections 3.1 and 3.2, this Section 12.4 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Appears in 3 contracts
Sources: Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, to shall indemnify and hold harmless each Arranger, each the Administrative Agent, each Lender Lender, each Issuer, the Arrangers and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativepartners, attorneys, consultants trustees or advisors and advisors of or to any of other representatives (collectively 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 “IndemniteeIndemnitees”) from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements and expenses (including Attorney Costs) of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) whatsoever which may at any time 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 way 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 (but limited, in the case of any potential matter covered hereby 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 is material to the interest of such Indemnitees, and solely in the case of a conflict of interest between Indemnitees (collectively, where the “Indemnified Matters”); provided, however, that neither Group nor Indemnitee affected by such conflict has informed the Borrower shall not have any obligation under this Section 11.4 of such conflict), one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) (i) to an Indemnitee with respect to any Indemnified Matter caused by the execution, delivery, enforcement, performance or resulting 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 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 administration 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 Loan Document or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 letter or understanding made by or on behalf of any Warnaco Entity 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 this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement 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 pursuant any refusal by an Issuer to this Section 11.4honor 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 Document shall (i) survive payment in full Party, or any Environmental Liabilities arising out of the Secured Obligations 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 (ii) inure all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the benefit 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 willful misconduct of such Indemnitee or of any Related Indemnified Person who was at of such Indemnitee as determined by a final, non-appealable judgment of a court of competent jurisdiction or (y) a material breach of any time obligations under any Loan Document by such Indemnitee or of any Related Indemnified Person of such Indemnitee, in 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 administrative agent, collateral agent, co-collateral agent, arranger, bookrunner or any similar role under the Facilities and other than any claims arising out of any act or omission of the Borrower or any of its 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 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 DocumentDocument or arising out of its activities in connection herewith or therewith (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 any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 12.4 (after the determination of a court of competent jurisdiction, if required pursuant to the terms of this 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 any Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge 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. (a) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements obligations and expenses (including, without limitation, any losses relating to Borrower’s market activities as a consequence of becoming, or of the risk of becoming, subject to Section 16(b) of the Exchange Act, including, without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel to any losses in connection therewith) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit warranties contained in Section 7 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to breach by Lender of any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee its covenants or agreements 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 the Facility Agents or such Lenderthis Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, 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 Warnaco Entity in connection with the transactions contemplated (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement.
(c) Group and the Borrower agree, jointly and severally, that In case any indemnification claim or other protection provided litigation which might give rise to any Indemnitee pursuant to this Agreement (including pursuant to obligation of a party under this Section 11.412 (each an “Indemnifying Party”) shall come to the 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 any other Loan Document 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 participate in and, if (i) survive payment in full the judgment of the Secured Obligations 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) inure the Indemnifying Party admits that this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to direct the defense of any claim at its expense, but such defense shall be conducted by legal counsel reasonably satisfactory to the benefit Indemnified Party. An Indemnified Party shall not make any settlement of any Person who was at any time an Indemnitee claim or litigation under this Agreement or any other Loan DocumentSection 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) Group and the Borrower agreeshall indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each Agent, each and defend Lender and each Issuer its successors 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 assigns against any and all claims, damagesdemands, 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, obligationsincluding the liability of Borrower or Lender for negligence, lossestort, penaltiesstrict liability or environmental liability, actions, judgments, suitsdamages, costs, disbursements court costs and expenses of any kind or nature (and all other expenses, including reasonable fees Attorneys’ Fees, judgments and disbursements of counsel to any such Indemnitee) which may be imposed onamounts paid in settlement, incurred by incident to, arising out of, or asserted against in any such Indemnitee way connected with any Actions, any Agreement, any Equipment, or any other instrument, document or agreement executed 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 contemplated by any of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”)foregoing; provided, however, provided that neither Group nor the Borrower shall not have no obligation hereunder to Lender or any of its affiliates or related to the extent that such obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting for indemnification shall have resulted from the gross negligence negligence, bad faith or willful misconduct of that Indemnitee, the party to be indemnified or any of its affiliates as determined by a court of competent jurisdiction in 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 orderin any way in connection with Lender’s interests in, (ii) with respect to taxes (or defense of, any Action or Lender’s enforcement of its rights and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16, and (iii) to an Indemnitee interests with respect to any Indemnified Matter that does not involve an act Equipment or omission otherwise under each Agreement, or any other instrument, document or agreement executed in connection with or contemplated by any of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting the foregoing, Indemnified Matters which shall include (i) such reasonable and documented attorneys’ fees incurred by Lender whether or not a suit or action is commenced, and all Environmental Liabilities and Costs arising from costs in collection of sums due during any work out 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 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 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 Entitysettlement negotiations, or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosure, except, with respect cost 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 defend Lender or to enforce 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 the Facility Agents or such Lenderits rights.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Master Equipment Finance Agreement (Stronghold Digital Mining, Inc.), Master Equipment Finance Agreement (Stronghold Digital Mining, Inc.)
Indemnities. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering of Ordinary Shares pursuant to this Section 2:
2.8.1 The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder and each Issuer and each of their respective Affiliatesany underwriter (as defined in the Securities Act) 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, agents, representative, attorneys, consultants employees and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction agents of any of the conditions set forth in Article III) them (each such Person being each, an “IndemniteeIndemnified Person”) from and against any and all claimslosses, damages, claims, liabilities, obligationsjoint or several, costs and expenses (including 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, insofar as such losses, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon: (i) any untrue statement or alleged untrue statement of any kind material fact contained, on the effective date thereof, in the Registration Statement or nature included in any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto; (including reasonable fees and disbursements 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 counsel to the circumstances in which they are made, not misleading; or (iii) any such Indemnitee) which may be imposed onviolation by the Company of the Securities Act, incurred by the Exchange Act or asserted against any such Indemnitee 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 arising out of any investigation, litigation attorney’s fees 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 expenses incurred by them in connection with any investigation of any potential matter covered hereby (collectivelyinvestigating, the “Indemnified Matters”)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 neither Group nor the Borrower shall Company will not have any obligation under this Section 11.4 (i) to an Indemnitee with respect be liable to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction Person in a final non-appealable judgment or order, (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 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 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, case to the extent incurred following (A) foreclosure 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 Facility Agentunderwriter 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 Lender such claim, loss, damage, liability or any Issuer, or any Facility Agent, any Lender or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts consent of the ArrangersCompany, the Facility Agentswhich consent shall not be unreasonably withheld, such Lender conditioned or such Issuer or delayed. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Holder, the underwriter or any Warnaco Entity 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 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 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 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 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 legal or other expense subsequently incurred by such indemnified party in connection with the transactions contemplated 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 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 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 this Agreementthe claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(c) Group 2.8.4 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 terms thereof shall be entitled to contribution to liabilities and expenses in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the Borrower agreeindemnified party in connection with the statements, jointly omissions, or other actions that 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 severallyaccess to information concerning the matter with respect to which the claim was asserted, that the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by 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 other protection provided to any Indemnitee pursuant to this Agreement (including contribution pursuant to this Section 11.4) 2.8 from any person or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person entity who was at any time an Indemnitee under this Agreement or any other Loan Documentnot guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Valens Semiconductor Ltd.), Investors’ Rights Agreement (PTK Acquisition Corp.)
Indemnities. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering of Ordinary Shares pursuant to this Agreement:
6.1 The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender the Holder, the officers and each Issuer directors of the Holder and each of their respective Affiliatesany underwriter for the Holder, and each of person, if any, who controls the directorsHolder or such underwriter, 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 claimslosses, damages, claims, liabilities, obligations, losses, penalties, actions, judgments, suitsjoint or several, costs, disbursements and expenses (including any amounts paid in any settlement effected with the Company's consent) to which the Holder or any such officers and directors of the Holder, 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 are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented, or (including ii) the 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 reasonable fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with or arising out of any investigationinvestigating, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirectpreparing to defend, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulationdefending against, 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 appearing as a third-party witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action, or proceeding; provided, however, that neither Group nor the Borrower shall Company will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure by that any Facility Agentsuch loss, any Lender or any Issuerdamage, 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 Facility Agentunderwriter of any 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 Lender such claim, loss, damage, liability, or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts consent of the ArrangersCompany, the Facility Agents, such Lender or such Issuer or which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Holder, the officers and directors of the Holder, the underwriter, or any Warnaco Entity controlling person of the Holder or the underwriter, and regardless of any sale in connection with such offering by the transactions contemplated Holder. Such indemnity shall survive the transfer of securities by this Agreementa Holder.
(c) Group 6.2 The Holder participating in a registration hereunder will indemnify and hold harmless the Borrower agreeCompany, jointly the officers and severallydirectors of the Company, that any indemnification underwriter for the Company, and each person, if any, who controls the Company or other protection provided to such underwriter, from and against any Indemnitee pursuant to this Agreement and all losses, damages, claims, liabilities, costs, or expenses (including pursuant any amount paid in any settlement effected with the Holder's consent) to this Section 11.4) which the Company, the officers and directors of the Company or any other Loan Document shall 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) survive payment any untrue or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 Person who 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 time 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 Indemnitee under this Agreement 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 other Loan Documentindemnifying 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 if in the reasonable judgment of the 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 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.
6.4 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 terms thereof shall be entitled to contribution to liabilities and expenses. 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 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 found so liable, and in no event shall any contribution from the Holder be more than the gross proceeds that it receives from the offering .
Appears in 2 contracts
Sources: Registration Rights Agreement (Nur Macroprinters LTD), Registration Rights Agreement (Nur Macroprinters LTD)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, each Agent, 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, and each of the directors, officers, employees, agents, representativetrustees, shareholders, controlling persons, members, representatives, attorneys, consultants and consultants, advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 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 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 not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting to the extent it that has resulted primarily from the bad faith, 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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 the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, the Collateral Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the ArrangersAdministrative Agent, the Facility AgentsCollateral Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents such Agent, such Lender or such LenderIssuer.
(b) Group and The Borrower shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arrangerthe Collateral Agent, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arrangerthe Collateral Agent, each Lender the Lenders and each Issuer issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arrangerthe Collateral Agent, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, 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 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch 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 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 Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who 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 any other Loan Document.
(e) Notwithstanding the foregoing Section 11.4, an Indemnitee shall effect no settlement or any 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. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering of Registrable Securities pursuant to this Section 1:
1.4.1. The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder whose Registrable Securities are included in the registration and each Issuer and each of their respective Affiliatesperson, and each of if any, who controls the directorsHolder, 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 claimslosses, damages, claims, liabilities, obligationsjoint or several, and reasonable costs and expenses (including any amounts paid in any settlement effected with the Company's consent) to which the Holder or controlling person may become subject under applicable law or otherwise, insofar as such losses, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented, or (including 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 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 reasonable fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third-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 witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action or proceeding; provided, however, that neither Group nor the Borrower shall Company will not have any obligation under this Section 11.4 (i) to an Indemnitee with respect be liable to any Indemnified Matter caused by Holder or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction controlling person in a final non-appealable judgment or order, (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 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 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, case to the extent incurred following (A) foreclosure 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 Facility Agentsuch claim, any Lender loss, damage, liability or any Issuer, or any Facility Agent, any Lender or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts written consent of the ArrangersCompany, the Facility Agents, such Lender or such Issuer or which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the selling Holder or any Warnaco Entity controlling person of the selling Holder, and regardless of any sale in connection with such offering by the transactions contemplated selling Holder. Such indemnity shall survive the transfer of securities by this Agreementa 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 (c) Group and each of its directors and officers), any underwriter for the Borrower agreeCompany, jointly any other person participating in the distribution and severallyeach person, that if any, who controls the Company, such underwriter, or such other person from and against any indemnification and all losses, damages, claims, liabilities, costs or other protection provided to any Indemnitee pursuant to this Agreement expenses (including pursuant any amounts paid in any settlement effected with the selling Holder's consent) to this Section 11.4which the Company (and each of its directors and officers) or any other Loan Document shall 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) survive payment any untrue or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 Person who 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 time 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 Indemnitee under this Agreement 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 other Loan Documentindemnifying 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 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 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.
1.4.4. 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 terms thereof shall be entitled to contribution to liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such Holder.
1.4.5. Notwithstanding the foregoing, to the extent 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) Group and In the Borrower agree, jointly and severally, event of any registered offering of Registrable Shares pursuant to this Agreement:
7.1. The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder and each Issuer and each of their respective Affiliatesany underwriter for such Holder, and each of person, if any, who controls the directorsHolder or such underwriter, 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 claimslosses, damages, claims, liabilities, obligationsjoint 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon either: (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented, or (including 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 the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any reasonable fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third- 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 witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action or proceeding; provided, however, that neither Group nor the Borrower shall Company will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure 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 Facility Agentsuch claim, any Lender loss, damage, liability or any Issuer, or any Facility Agent, any Lender or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts consent of the ArrangersCompany, the Facility Agents, such Lender or such Issuer or which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Holder, the underwriter or any Warnaco Entity controlling person of the Holder or the underwriter, and regardless of any sale in connection with such offering by the transactions contemplated Holder. Such indemnity shall survive the transfer of securities by this Agreementa Holder.
(c) Group 7.2. Each Holder participating in a registration hereunder will indemnify and hold harmless the Borrower agreeCompany, jointly its officers and severallydirectors, that any indemnification underwriter for the Company, and each person, if any, who controls the Company or other protection provided to such underwriter, from and against any Indemnitee pursuant to this Agreement and all losses, damages, claims, liabilities, costs or expenses (including pursuant any amounts paid in any settlement effected with the selling shareholder’s consent) to this Section 11.4) which the Company or any other Loan Document shall 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) survive payment any untrue or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 Person who 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 an Indemnitee 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 Agreement or 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 other Loan Documentindemnifying 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 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 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. 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 terms thereof shall be entitled to contribution to liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances.
7.5. Notwithstanding the foregoing, to the extent 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) Group and the Each Borrower agreeagrees, jointly and severally, to indemnify and hold harmless each Agent, each Arranger, each AgentLender, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIISection 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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Obligation, any Letter of Credit 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 Borrowers shall not have any obligation liability under this Section 11.4 (i) 10.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting that has resulted from the gross negligence or willful misconduct of that Indemniteesuch Indemnitee or the material 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, (ii. This Section 10.4(a) shall not apply with respect to taxes (and amounts relating thereto)Taxes other than any Taxes that represent losses, the indemnification for which shall be governed solely and exclusively by Section 2.16claims, 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 Indemniteedamages, etc. 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 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 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 the Facility Agents or such Lendernon-Tax claim.
(bj) Group and the Each Borrower shall, shall jointly and severally, severally indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each Agentthe Agents, each Arrangerthe Arrangers, each Lender the Lenders and each Issuer the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arrangerthe Arrangers, Lender or any Issuer 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 Warnaco Entity Loan Party or any of the Parent Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(ck) Group 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 agreeto defend against such investigation, jointly litigation or proceeding, such Borrower shall promptly do so and severallysuch 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 (including pursuant to this Section 11.410.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. (a) Group and The Borrowers shall indemnify the Borrower agreeAdministrative Agent, jointly and severallythe Collateral Agent, to indemnify and hold harmless each the Lead Arranger, each the Documentation Agent, each Lender the Syndication Agent, the Issuing Bank and each Issuer and each of their respective AffiliatesLender, and each Related Party 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) Persons (each such Person being called an “Indemnitee”) from against, and against hold each Indemnitee harmless from, on an after-Tax basis, any and all losses, claims, damages, liabilities, obligations, losses, penalties, actionsliabilities and related expenses, judgmentsincluding the reasonable fees, suits, costs, disbursements and expenses of any kind or nature (including reasonable fees charges and disbursements of any counsel to for any such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any 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 such Letter of Credit), (iii) the handling of the Funding Accounts, Collection Account, any account subject to a Blocked Account Agreement and Collateral of Borrowers as herein provided, (iv) the Agent, Issuing Bank or arising out Lender relying on any instructions of the Administrative Borrower, (v) any investigationactual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrowers or any of their Subsidiaries, litigation or proceedingany Environmental Liability related in any way to the Borrowers or any of their Subsidiaries, or (vi) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or not any such other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, 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 as to any thereofIndemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or the use or intended use related expenses are finally determined by a court 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 not competent jurisdiction to have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting resulted from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction such Indemnitee in a final non-appealable judgment nonappealable order or order, (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 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 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 the Facility Agents or such Lenderjudgment.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Company agrees to indemnify and hold harmless each the Administrative Agent, the Arranger, each Agent, each Lender LC Participant and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 LC Facility 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 Company shall not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of any Warnaco Entity 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 connection with any Remedial Action concerning any Warnaco Entity; Group Member, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Warnaco EntityGroup Member, or the owner, lessee or operator of any property of any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, the Arranger, any Lender LC Participant or any Issuer, or any Facility the Administrative Agent, the Arranger, any Lender LC Participant or any Issuer having become the successor in interest to any Warnaco Entity, Group Member and (By) attributable solely to acts of the ArrangersAdministrative Agent, the Facility AgentsArranger, such Lender LC Participant or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, the Arranger, such LC Participant or such LenderIssuer.
(b) Group and The Company shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each the Arranger, each Lender the LC Participants and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the LC Participants and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, the Arranger, Lender or any Issuer 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 Warnaco Entity Credit Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group 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 Borrower agreeCompany, jointly 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 to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.4) or any other Loan LC Facility Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan LC Facility Document.
Appears in 2 contracts
Sources: Amendment No. 7 (Tenet Healthcare Corp), Letter of Credit Facility Agreement (Tenet Healthcare Corp)
Indemnities. (a) Group and the Borrower agree, jointly and severally, 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 its directors, officers, employees, agents, representativerepresentatives, 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, 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 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 in 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 Enhancement 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Union Carbide Corp /New/), Revolving Credit Agreement (Union Carbide Corp /New/)
Indemnities. (a) Group The Corporation hereby covenants and the Borrower agreeagrees to protect, jointly and severally, to indemnify and hold harmless each Arranger, each Agent, each Lender and each Issuer and each the Agent and/or any of their its respective Affiliates, affiliates and each of the directors, officers, employees, agentspartners, representative, attorneys, consultants counsel and advisors of or to any agents of the foregoing Agent (including those retained in connection with hereinafter referred to as the satisfaction or attempted satisfaction of any of the conditions set forth in Article III"Personnel") (each such Person being an “Indemnitee”) 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, liabilitiesliabilities or actions arise out of or are based, obligationsdirectly or indirectly, losses, penalties, actions, judgments, suits, costs, disbursements upon the performance of professional services rendered to the Corporation by the Agent and expenses of any kind the Personnel hereunder 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 otherwise 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 the matters referred to 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 this indemnity shall not have any obligation under this Section 11.4 (i) apply to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of extent that Indemnitee, as determined by a court of competent jurisdiction in a final judgment that has become non-appealable judgment shall determine that:
(i) the Agent and/or the Personnel have been grossly negligent or order, dishonest or have committed any fraudulent act in the course of such performance;
(ii) with respect the expenses, losses, claims, damages or liabilities, as to taxes which indemnification is claimed, resulted from the gross negligence, dishonesty or fraud referred to in (and amounts relating theretoi), the indemnification for which shall be governed solely and exclusively by Section 2.16, and ; or
(iii) in the event that the Agent breaches any material provision of this Agreement or material applicable 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 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 an Indemnitee with respect testify in connection therewith or required to any Indemnified Matter that does not involve an act respond to procedures designed to discover information regarding or omission 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 Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting of 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 events itemized in 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 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), ) and (iii) and (iv) 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 extent incurred following (A) foreclosure by 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 Facility proceeding or claim shall be made without the consent of the Corporation and the Agent, any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer having become such consent not to be unreasonably withheld. The indemnity and contribution obligations of the successor Corporation shall be in interest addition to any Warnaco Entityliability which the Corporation may otherwise have, shall extend upon the same terms and (B) attributable solely conditions to acts the Personnel of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such Lender.
(b) Group Agent and the Borrower shall, jointly shall be binding upon 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure enure to the benefit of any Person who was at successors, assigns, heirs and personal representatives of the Corporation, the Agent and any time an Indemnitee of the Personnel of the Agent. The foregoing provisions shall survive the completion of professional services rendered under this Agreement or any other Loan DocumentAgreement.
Appears in 2 contracts
Sources: Agency Agreement (Searchlight Minerals Corp.), Agency Agreement (Searchlight Minerals Corp.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Company agrees to indemnify and hold harmless each Agent, 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 Co-Documentation Agent, each Lender and each Issuer the Syndication Agent and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 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 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 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 Borrowers shall not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any Warnaco Entity 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; migrating from such property, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Company or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; 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 Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Company or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Company or any Warnaco Entity, of its Subsidiaries and (By) to the extent attributable solely to acts or omissions of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such LenderIssuer or any other Indemnitee.
(b) Group and the Borrower shall, jointly and severally, The Company shall indemnify each Agent, each Arranger, each Lender Lender, Issuer, Co-Documentation Agent and each Issuer Syndication Agent for, and hold each such Agent, each Arranger, each Lender Lender, Issuer, Co-Documentation Agent and each Issuer Syndication Agent harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arrangerthe Arrangers, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group 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 Borrower agreeCompany, jointly 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 to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and severallysuch 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 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 Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Marquee Holdings Inc.), Credit Agreement (Amc Entertainment Inc)
Indemnities. (a) Group Except as provided in Section 8.2(b) below, Seller agrees to assume liability for and the Borrower agree, jointly and severally, to indemnify and hold harmless each ArrangerBuyer or any of its officers, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each employees or agents (the "Indemnitees") (other than solely in its capacity as a manufacturer of the directors, officers, employees, agents, representative, attorneys, consultants Engine) against and advisors of or agrees 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 pay on demand any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature Losses (including reasonable fees and disbursements of counsel to any such Indemniteeas defined in the Lease) which Buyer may be imposed onsuffer or incur at any time, incurred by whether directly or asserted against any such Indemnitee in connection with or indirectly, arising out of any investigationof, 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 related to 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 not have any obligation under this Section 11.4 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 an Indemnitee with respect to the Engines or any Indemnified Matter caused by part thereof (regardless of whether such Losses are based on strict liability in tort, any act or resulting from omission, including the gross negligence or willful misconduct negligence, of that any Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, otherwise); or
(ii) with respect to taxes (the design of any article or material in the any Engine or any Part or its operation, including any defect in design and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16regardless of whether it is discoverable, and (iii) any infringement of patent, copyright, trademark, design or other proprietary right claimed by any Person or a breach of any obligation of confidentiality claimed to an Indemnitee with respect be owed 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 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 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 the Facility Agents or such LenderPerson.
(b) Group and Seller is not required to indemnify any particular Indemnitee under Section 8.2(a) (without, however, limiting Seller's obligations as lessee under the Borrower shallLease), jointly and severallyto the extent a particular Loss:
(i) arises out of any act, indemnify each Agentomission, each Arranger, each Lender and each Issuer for, and hold each Agent, each Arranger, each Lender and each Issuer harmless from and against, event or 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 and all claims for brokerage commissions, fees and other compensation made against of its express obligations under this Agreement (unless such failure is caused by failure by Seller to comply with any Agent, Arranger, Lender of its express obligations under this Agreement) or any Issuer for any broker, finder representation or consultant with respect warranty given by Buyer not being true and correct;
(iv) is related to any agreement, arrangement Taxes;
(v) constitutes ordinary and usual operating or understanding made overhead expenses of such Indemnitee (other than where such expense is caused by or on behalf the occurrence of any Warnaco Entity breach by Seller of its obligations under this Agreement);
(vi) is 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 transactions contemplated by this Agreementmeaning 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 ERISA Plan to acquire or hold Buyer's interest in the Engine or in the case of any transferee of the Buyer, to purchase the Engine from the Buyer.
(c) Group The parties hereto expressly agree that the provisions of Sections 10(c), (d), (e) and (f) of the Borrower agree, jointly CTA shall apply MUTATIS MUTANDIS in respect of any Loss and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to for under this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document8.2.
Appears in 2 contracts
Sources: Engine Purchase Agreement (Republic Airways Holdings Inc), Engine Purchase Agreement (Republic Airways Holdings Inc)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Agent, each Arranger, each AgentLender, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIISection 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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Obligation, any Letter of Credit 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 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 neither Group nor the Borrower shall not have any obligation liability under this Section 11.4 (i) 10.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting that has resulted from the gross negligence or willful misconduct of that Indemniteesuch 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, (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 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 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 the Facility Agents or such Lender.
(b) Group and the The Borrower shall, jointly and severally, shall indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each Agentthe Agents, each Arrangerthe Arrangers, each Lender the Lenders and each Issuer the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arrangerthe Arrangers, Lender or any Issuer 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 Warnaco Entity Loan Party or any of the Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The 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 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 agreeto defend against such investigation, jointly litigation or proceeding, the Borrower shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.410.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP), Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. (a) Group and the Each Borrower agreeagrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Administrative 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreement, (i) any other Loan Document, any Secured ObligationDisclosure Document, any Letter of Credit Obligation (or any actthe repayment thereof), event or transaction related or attendant to any thereof, or 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 or on behalf of the Loans any Group Member or Letters any Affiliate of Credit or any of them in connection with any investigation of the foregoing and any potential matter covered hereby 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 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 neither Group nor the no Borrower shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, (ii) with respect each of Holdings and each Borrower waives and agrees not to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16assert against any Indemnitee, and (iii) shall cause each other Loan Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities 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 may be imposed on, upon incurred by or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 asserted 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 Warnaco Entity in connection with the transactions contemplated by this AgreementRelated Person.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Rush Enterprises Inc \Tx\), Credit Agreement (Rush Enterprises Inc \Tx\)
Indemnities. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering of Ordinary Stock pursuant to this Section 3:
3.8.1 The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder and each Issuer and each of their respective Affiliatesany underwriter for such Holder, and each of person, if any, who controls the directorsHolder or such underwriter, 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 claimslosses, damages, claims, liabilities, obligationsjoint 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented, or (including 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 the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any reasonable fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third-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 witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action or proceeding; provided, however, that neither Group nor the Borrower shall Company will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure 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 Facility Agentunderwriter of any 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 Lender such claim, loss, damage, liability or any Issuer, or any Facility Agent, any Lender or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts consent of the ArrangersCompany, the Facility Agents, such Lender or such Issuer or which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the selling shareholder, the underwriter or any Warnaco Entity controlling person of the selling shareholder or the underwriter, and regardless of any sale in connection with such offering by the transactions contemplated selling shareholder. Such indemnity shall survive the transfer of securities by this Agreementa selling shareholder.
(c) Group 3.8.2 Each Holder participating in a registration hereunder, severally and not jointly, will indemnify and hold harmless the Borrower agreeCompany, jointly any underwriter for the Company, and severallyeach person, that if any, who controls the Company or such underwriter, from and against any indemnification and all losses, damages, claims, liabilities, costs or other protection provided to any Indemnitee pursuant to this Agreement expenses (including pursuant any amounts paid in any settlement effected with the selling shareholder’s consent) to this Section 11.4) which the Company or any other Loan Document shall 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) survive payment any untrue or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 Person who 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 time 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 Indemnitee under this Agreement 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 other Loan Documentindemnifying 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 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 fifteen (15) days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, or (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 entry of any judgment or 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 to such claim or litigation.
3.8.4 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 terms thereof shall be entitled to contribution to liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Borderfree, Inc.)
Indemnities. (a) Group The Company agrees to, and the Borrower agreeshall cause each other Loan Party to, jointly and severally, to indemnify and hold harmless each ArrangerAgent, each AgentArranger, each Lender and each Issuer Issuing Lender and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIIIX) (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Payment Obligation, any Letter of Credit 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 Company shall not have any obligation liability under this Section 11.4 (i) 14.17 to an Indemnitee with respect to any Indemnified Matter caused by or resulting to the extent such liability has resulted 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; provided, (ii) with respect further, that the Company shall not be required to taxes (reimburse the Indemnitees for the fees and amounts relating thereto), expenses of more than one joint counsel for the indemnification Administrative Agent and the Collateral Agent and one joint counsel for which the other Indemnitees unless such representation 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 result in a conflict of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemniteeinterest among the Indemnitees. Without limiting the foregoing, “Indemnified Matters Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any Warnaco Entity of its Subsidiaries involving any property subject to a Collateral Security Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants 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 Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Lien in favor of any Governmental Authority for Environmental Lien; Liabilities and Costs and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Company or any Warnaco Entity 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 (A) foreclosure by any Facility the Collateral Agent, at the direction of the Administrative Agent, any Lender or any IssuerIssuing Lender, or any Facility Agent, any Lender or any Issuer Issuing Lender having become the successor in interest to the Company or any Warnaco Entity, of its Subsidiaries and (By) to the extent attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer Issuing Lender or any agent on behalf of the Facility Agents such Agent, such Lender or such Issuing Lender.
(b) Group and the Borrower The Company shall, jointly and severallyshall cause each other Loan Party to, indemnify each Agentthe Agents, each Arranger, each Lender the Lenders and each Issuer Issuing Lenders for, and hold each Agentthe Agents, each Arranger, each Lender the Lenders and each Issuer Issuing Lender harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group 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 Borrower agreeCompany, jointly 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 to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and severallylead 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 reasonable for a secondary counsel; 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. No action taken by 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 (including pursuant to this Section 11.414.17) or any other Loan Document shall (i) survive payment in full Full Satisfaction of the Secured Payment Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp)
Indemnities. (a) Group The Borrower hereby indemnifies and the Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Arrangerthe Bank and its officers, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officersemployees and agents against and from any and all suits, employeesactions, agentsproceedings, representativeclaims, attorneysdamages, consultants losses, liabilities and advisors of or to any of the foregoing expenses (including those retained reasonable attorneys' fees and expenses) which may be instituted or asserted against or incurred by such indemnified Person arising out of, in connection with the satisfaction any way connected with, or attempted satisfaction as a consequence of any of the conditions set forth in Article IIIfollowing:
(a) (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 the use 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 Loans; or
(b) 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 Loan or Letters of Credit any part thereof or interest accrued thereon, or any other amount due in connection with any investigation of the Loan Documents; or
(d) the occurrence of any potential matter covered hereby other Default or Event of Default under this Agreement; or
(collectivelye) any claim, litigation, investigation or proceeding relating to any of the “Indemnified Matters”)foregoing, whether or not such indemnified Person is a party thereto; provided, however, that neither Group nor or
(f) the failure of the Borrower to borrow a LIBOR Loan after agreement shall not 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 obligation under this Section 11.4 (i) part of a LIBOR Loan or a Fixed Rate Loan prior to the last day of an Indemnitee with respect to any Indemnified Matter caused by Interest Period or resulting from the gross negligence or willful misconduct of that IndemniteeMaturity Date, as determined by the case may be, applicable thereto; or
(h) the conversion, prior to the last day of an applicable Interest Period, of a court of competent jurisdiction in LIBOR Loan to a final non-appealable judgment Prime Loan or order, (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 Indemniteea Fixed Rate Loan. Without limiting the effect of the foregoing, Indemnified Matters include 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) all Environmental Liabilities the 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"), and Costs arising from shall end, as to the whole or connected with each part of the pastprincipal amount so received or recovered, present on the date or future operations dates determined by applying such amount to the last maturing installments thereof in inverse order 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; their respective maturities over (ii) any costs the amount of interest which would be earned by the Bank during the Indemnity Period if it invested the whole or liabilities incurred each part of the principal amount so received or recovered (as the case may be) on the Commencement Date at the rate per annum determined by the Bank as the rate it would bid in connection with any Remedial Action concerning any Warnaco Entity; the London interbank market for a deposit of Eurodollars in an amount approximately equal to such principal amount (iiior part thereof) 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect for a period of time comparable to the Indemnity Period. A certificate as to any of such matters, such Indemnitee is a mortgagee additional amounts payable pursuant to this 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 leasehold mortgage, a mortgagee 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 possessionfull force and effect regardless of the expiration of the term of this Agreement, the successor in interest to any Warnaco Entityconsummation of the transactions contemplated hereby, or the owner, lessee or operator repayment of any property or all of the Obligations, the invalidity or unenforceability of any Warnaco Entity by virtue term 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 this Agreement or any Issuerof the other Loan Documents, 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 the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) Bank or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentindemnified Person.
Appears in 2 contracts
Sources: Loan Agreement (New York Restaurant Group Inc), Loan Agreement (Smith & Wollensky Restaurant Group Inc)
Indemnities. (a) Group and the Borrower agree, jointly and severally, If any Registrable Shares are included in a registration statement pursuant to this Agreement:
5.1. The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender and each Issuer and each of their respective Affiliatesthe Holder, any underwriter (as defined in the Securities Act) for the Holder, and each of person, if any, who controls the directorsHolder or such underwriter (collectively and individually referred to as the “Indemnified Party”), 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 claimslosses, damages, claims, liabilities, obligations, losses, penalties, actions, judgments, suitsjoint or several, costs, disbursements and expenses (including any amounts paid in any settlement effected with the Company’s consent, which consent will not be unreasonably withheld) to which such 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 are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented (including including, in each case, all documents incorporated by reference therein, as such documents may have been updated by later dated documents), (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 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 fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with or arising out of any investigationinvestigating, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirectpreparing to defend, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulationdefending against, 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 appearing as a third-party witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action, or proceeding; provided, however, that neither Group nor the Borrower shall Company will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure by that any Facility Agentsuch loss, any Lender or any Issuerdamage, 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 Facility Agentunderwriter of any 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 Lender such claim, loss, damage, liability, or 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 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 the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Indemnified Party, and regardless of any Warnaco Entity sale in connection with such offering by the transactions contemplated Holder. Such indemnity shall survive the transfer of securities by this Agreementthe 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 (ccollectively 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) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) Indemnifiable Party may become subject under applicable law or any other Loan Document shall 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) survive payment any untrue statement or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 Person who 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 time 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 Indemnitee under this Agreement 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 other Loan Documentindemnifying 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 action include both the Indemnified or Indemnifiable Party and the indemnifying party and if in the reasonable judgment of the 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 indemnifying party has authorized the employment of counsel for the Indemnified or Indemnifiable Party at the expense of the indemnifying party, or (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 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 or Indemnifiable Party of a 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 terms thereof shall be entitled to contribution to liabilities and expenses. 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 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 found so liable.
Appears in 2 contracts
Sources: Voting Agreement (Nur Macroprinters LTD), Registration Rights Agreement (Nur Macroprinters LTD)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, to shall indemnify and hold harmless each Arranger, each Agent, each the Lender and each Issuer and each of their respective Affiliates, its affiliates and each of the respective officers, directors, officers, employees, agents, representativeadvisors, attorneysattorneys and representatives of each (each, 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”"Indemnified Party") from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements losses liabilities and expenses of any kind or nature (including including, without limitation, reasonable fees and disbursements of counsel to any such Indemnitee) which counsel), joint or several, that may be imposed on, incurred by or asserted or awarded against any such Indemnitee Indemnified Party, in each case arising out of or in connection with or arising out of relating to any investigation, litigation or proceedingproceeding 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 such Indemnitee of its shareholders or creditors, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto, whether direct, indirect, or consequential thereto and whether based on any federalor not the transactions contemplated hereby are consummated, state except to the extent such claim, damage loss, liability 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction expense is found in a final non-appealable judgment or order, (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 a court 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 competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. No Indemnified Party shall have any Release of Contaminants onliability (whether direct or indirect, upon in contract, tort or into such property otherwise) to the Borrower or any contiguous real estate; (ii) any costs of its shareholders or liabilities incurred in connection with any Remedial Action concerning any Warnaco Entity; (iii) any costs creditors for or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter 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 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated hereby, except to the extent such liability is found in a final non-appealable judgement by this Agreementa court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. In no event, however, shall any 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 (for itself and on behalf of its Subsidiaries) not 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.
(cb) Group and the The Borrower agree, jointly and severally, agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.49.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Term Loan Agreement (Arv Assisted Living Inc), Term Loan Agreement (Arv Assisted Living Inc)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, to shall indemnify and hold harmless each Arrangerthe Agents, each AgentLender, each Lender Issuer, the Arrangers and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativepartners, attorneys, consultants trustees or advisors and advisors of or to any of other representatives (collectively 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 “IndemniteeIndemnitees”) from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements and expenses (including Attorney Costs) of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) whatsoever which may at any time 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 way 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 (but limited, in the case of any potential matter covered hereby (collectivelylegal fees and expenses, to the “Indemnified Matters”); providedreasonable and documented out-of-pocket fees, howeverdisbursements 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 neither Group nor is material to the Borrower shall not have any obligation under this Section 11.4 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) (i) to an Indemnitee with respect to any Indemnified Matter caused by the execution, delivery, enforcement, performance or resulting 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 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 administration 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 Loan Document or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 letter or understanding made by or on behalf of any Warnaco Entity instrument delivered in connection with the transactions contemplated by this Agreement.
thereby or the consummation of the transactions contemplated thereby, (cii) Group and any Revolving Credit Commitment, Loan or Letter of Credit or the Borrower agree, jointly and severally, that any indemnification use or other protection provided to any Indemnitee pursuant to this Agreement proposed use of the proceeds therefrom (including pursuant any refusal by an Issuer to this Section 11.4honor 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 Document shall (i) survive payment in full Party, or any Environmental Liabilities arising out of the Secured Obligations 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 (ii) inure all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the benefit extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Person who was at affiliate, director, officer, employee or agent of such Indemnitee or (y) a material breach of any time obligations under any Loan Document by such Indemnitee or of any Related Indemnified Person, in 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 administrative agent or arranger or any similar role under the Facility and other than any claims arising out of any act or omission of the Borrower or any of its 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 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.Document or arising out of its activities in connection herewith or therewith (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 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 twenty (20) Business Days after written demand therefor. The agreements in this Section 12.4
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Indemnities. (a) Group No Member, in its capacity as such, shall be liable, responsible or accountable in damages or otherwise to the Company or to any successor, assignee or transferee thereof for any act or omission performed or omitted by it in good faith pursuant to authority granted to it by this Agreement and in a manner reasonably believed by it to be within the Borrower agreescope of authority granted to it by this Agreement and in the best interests of the Company.
(b) The Members do not guarantee, jointly and severallyshall not be liable for, the return of all or any portion of the Capital Contribution of any Member or the payment of any distributions to indemnify any Member (or any assignee, successor or transferee thereof), it being expressly agreed that any such return of all or any portion of a Capital Contribution or payment of distributions shall be made solely from the assets of the Company (which shall not include any right of contribution from the Members) in accordance with this Agreement.
(c) The Company shall indemnify, defend and hold harmless (i) each ArrangerMember, each Agent, each Lender and each Issuer and each of their respective Affiliatesas such, and each (ii) any of the directors, officersCompany’s agents, employees, agentsadvisors and consultants, representativein their respective capacities as such, from and against any loss, liability, damage, cost or expense (including reasonable attorneys, consultants ’ fees and advisors expenses) arising out of or in defense of any demands, claims or lawsuits (derivative and otherwise) against the Company 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 of them, or as an officer, manager, agent, employee, advisor or consultant of the foregoing 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 (including those retained x) were not taken or made in connection accordance with the satisfaction standard set forth in Section 6.4(a) hereof, (y) constitute gross negligence, intentional misconduct or attempted satisfaction 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 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 a court of competent jurisdiction upon entry of a final judgment not to have been taken or made in accordance with the standard set forth in Section 6.4(a) hereof or constitute gross negligence, intentional misconduct or fraud. All rights of the Members and others to indemnification hereunder shall survive the dissolution of the Company and the removal, dissolution or insolvency of any of the conditions 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 Article IIISection 6.4(a) (each hereof or due to an act or omission constituting gross negligence, intentional misconduct or fraud by any Member or such other Person being an “Indemnitee”as has been indemnified under Section 6.4(c) from hereof, such Member or other Person shall indemnify and against any reimburse the Company for all loss, liability, damage, cost and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature expense incurred thereby (including reasonable attorney’s 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”expenses); provided, however, that neither Group nor the Borrower such Member or other Person shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined been found by a court of competent jurisdiction in upon entry of a final non-appealable judgment to have violated such standard or order, (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 taken such 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 made such property or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lenderomission.
(bf) Group and The liability of 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to Company under this Section 11.4) or any other Loan Document shall (i) survive payment in full 6.4 is limited to the assets of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan DocumentCompany.
Appears in 2 contracts
Sources: Operating Agreement, Operating Agreement (Gencor Industries 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 (aa “Holder Indemnified Party”), 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) Group 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 Borrower agreeCompany will reimburse such Holder Indemnified Party promptly upon demand, jointly for any reasonable documented, out-of-pocket 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 or (iii) any violation of alleged 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 performance of its obligations under this 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 the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and severally, effect regardless of any investigation made by or 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 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 each Arrangerthe Company, any underwriter for the Company, any other person participating in the distribution, each Agentperson, each Lender and each Issuer and each of their respective Affiliatesif any, who controls the Company, such underwriter or such other person and each of the foregoing person’s respective officers, directors, officers, employees, agentspartners, representativemembers, attorneys, consultants and advisors of advisors, agents or to any of the foregoing other representatives (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 a “IndemniteeCompany Indemnified Party”) from and against any and all claimslosses, damages, claims, liabilities, obligationscosts 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based on (i) any untrue or alleged untrue statement of any kind material fact contained in the Registration Statement or nature included in the prospectus, as amended or supplemented, or (including 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, 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 fees and disbursements of counsel to any such Indemnitee) which may be imposed on, legal or other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third-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 witness in connection with any investigation 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 potential 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 covered hereby (collectivelyof 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 “Indemnified Matters”)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; providedprovided 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, howeverthe 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, that neither Group nor the Borrower shall indemnifying party will not have be liable to such indemnified party pursuant to the provisions of said Sections 2.8.1 or 2.8.2 for any obligation under this Section 11.4 legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) to an Indemnitee the indemnified party shall have employed counsel in accordance with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct provision of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or orderthe preceding sentence, (ii) with respect the indemnifying party shall not have employed counsel reasonably satisfactory to taxes (the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and amounts relating thereto)within 15 days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, the indemnification for which shall be governed solely and exclusively by Section 2.16, and or (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 entry of any judgment or enter into any settlement if such settlement or judgment requires an Indemnitee with 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 to such claim or litigation.
2.8.4 If recovery is not available under the foregoing indemnification provisions, for 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 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 reason other matter 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 possessionthan as specified therein, the successor parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses in interest such proportion as is appropriate to any Warnaco Entity, or reflect the owner, lessee or operator relative fault 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 each of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such Lender.
(b) Group indemnifying party 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 Warnaco Entity indemnified party in connection with the transactions contemplated statements, omissions, or other actions that 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by this Agreementsuch Holder.
2.8.5 Notwithstanding anything to the contrary hereunder, no person or entity guilty of fraudulent misrepresentation (cwithin the meaning of Section 11(f) Group and of the Borrower agree, jointly and severally, that any indemnification or other protection provided Securities Act) shall be entitled to any Indemnitee pursuant to this Agreement (including contribution pursuant to this Section 11.4) 2.8 from any person or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person entity who was at any time an Indemnitee under this Agreement or any other Loan Documentnot guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (REE Automotive Ltd.), Investors’ Rights Agreement (REE Automotive Ltd.)
Indemnities. (a) Group The Company hereby indemnifies and the Borrower agree, jointly and severally, agrees to indemnify and hold harmless each ArrangerNoteholder and its officers, each Agentdirectors, each Lender employees and each Issuer agents against and each 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:
(i) the use of any proceeds of the Notes; or
(ii) this Agreement, any of the other Financing Documents, the performance by the parties hereto and thereto of their respective Affiliatesobligations hereunder and thereunder, and each consummation of the directorstransactions contemplated hereby and thereby; or
(iii) default in payment of the principal amount of the Notes or any part thereof or interest accrued thereon, officersor any other amount due in connection with any of the Financing Documents; or
(iv) the occurrence of any other Default or Event of Default under this Agreement; or
(v) any claim, employeeslitigation, agents, representative, attorneys, consultants and advisors of investigation or proceeding relating 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 proceedingforegoing, whether or not any such Indemnitee indemnified Person 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender.
(b) Group A certificate as to any additional amounts payable pursuant to this Section 11.15 setting forth the basis and method of determining such amounts shall be conclusive, absent manifest error, as to the Borrower shalldetermination 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 expiration of the term of this Agreement, jointly and severallythe consummation of the transactions contemplated hereby, indemnify each Agentthe repayment of any or all of the Notes, each Arranger, each Lender and each Issuer for, and hold each Agent, each Arranger, each Lender and each Issuer harmless from and against, the invalidity or unenforceability of any and all claims for brokerage commissions, fees and other compensation made against any Agent, Arranger, Lender term of this Agreement or any Issuer for of the other Financing Documents, or any broker, finder or consultant with respect to any agreement, arrangement or understanding investigation made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) Noteholders or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentindemnified 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. The Company shall promptly indemnify and keep indemnified each Indemnified Person against all Liabilities which that Indemnified Person may suffer (other than by reason of each Indemnified Person’s gross negligence or wilful misconduct) or incur other than in any jurisdiction which arise out of or in connection with, directly or indirectly, this Agreement, including (without limitation) any Liabilities which arise, directly or indirectly, out of or in connection with:
(a) 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 any default in repayment of the directors, officers, employees, agents, representative, attorneys, consultants and advisors of Advance or to any of the foregoing (including those retained in connection with the satisfaction part thereof or attempted satisfaction payment 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 interest accrued thereon 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 not have any obligation amount payable under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting from Agreement on 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 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 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 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 the Facility Agents or such Lender.due date;
(b) Group and any other default or breach by 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 Company of the terms of this Agreement or any Issuer for other Transaction Document, including without limitation any broker, finder or consultant with respect failure by the Company to any agreement, arrangement or understanding made by or on behalf issue Ordinary Shares to the Noteholders as a result of any Warnaco Entity Conversion;
(c) any failure by the Company or its agents, employees or professional advisers to comply with the Companies Act, UK Criminal Justice ▇▇▇ ▇▇▇▇, the UK Financial Services and Markets ▇▇▇ ▇▇▇▇, the AIM Rules or the EU Market Abuse Regulation (596/2014) or any other law applicable to it or them in connection with relation to the transactions contemplated by this Agreement.;
(cd) Group and the Borrower agree, jointly and severally, that occurrence of any indemnification Event of Default; and
(e) any repayment or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) prepayment of the Advance or part thereof being made after the Repayment Date or any other Loan Document due date for payment, including, in any such case, but not limited to, any losses, liabilities, damages, costs, charges or expenses sustained or incurred in maintaining or funding, the Advance or any part thereof or in liquidating or re-employing deposits from third parties acquired to effect or maintain the Advance or part thereof. The certificate of the Noteholders as to the amount of such losses, liabilities, damages, costs, charges or expenses shall (iin the absence of manifest error) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentbe conclusive.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement
Indemnities. (a) Group and the Borrower agreeEach Obligor agrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Administrative 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreement, (i) any other Loan Document, any Secured ObligationObligation (or the repayment thereof), 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 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 or on behalf of the Loans Borrower, its Subsidiaries or Letters any Affiliate of Credit or any of them in connection with any investigation of the foregoing and any potential matter covered hereby 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 neither Group nor the Borrower Obligors shall not have any obligation liability under this Section 11.4 (i) 9.4 to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, (ii) with respect each Obligor waives and agrees not to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16, and (iii) to an assert against any Indemnitee any right of contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, "Indemnified Matters include (i) Matters" includes all Environmental Liabilities and Costs Claims, including those arising from from, or connected with the pastotherwise involving, present or future operations of any Warnaco Entity involving any property subject to a Collateral Documentof the Borrower or any of its Subsidiaries or any actual, alleged or prospective damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real estate; (ii) property of the Borrower or any costs of its Subsidiaries, whether or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whethernot, with respect to any of such mattersEnvironmental Claims, such any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in successor-in-interest to the Borrower or any Warnaco Entity, of its Subsidiaries or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity by virtue of foreclosureits Subsidiaries through any foreclosure action, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, each case except to the extent such Environmental Claims (i) are incurred solely following (A) foreclosure by any Facility Agent, Secured Party or following any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer Secured Party having become the successor in successor-in-interest to any Warnaco Entity, Obligor and (Bii) are attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such LenderIndemnitee.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Loan Agreement (Us Airways Inc), Loan Agreement (Us Airways Group Inc)
Indemnities. (a) Group The Corporation hereby covenants and the Borrower agreeagrees to protect, jointly and severally, to indemnify and hold harmless each Arranger, each Agent, each Lender and each Issuer and each the Agent and/or any of their its respective Affiliates, affiliates and each of the directors, officers, employees, agents, representative, attorneys, consultants partners and advisors of or to any counsel of the foregoing Agent (including those retained in connection with hereinafter referred to as the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an “IndemniteePersonnel”) 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, liabilitiesliabilities or actions arise out of or are based, obligationsdirectly or indirectly, losses, penalties, actions, judgments, suits, costs, disbursements upon the performance of professional services rendered to the Corporation by the Agent and expenses of any kind the Personnel hereunder 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 otherwise 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 the matters referred to 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 this indemnity shall not have any obligation under this Section 11.4 (i) apply to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of extent that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, order that has become non- appealable shall determine that:
(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 such performance;
(ii) with respect the expenses, losses, claims, damages or liabilities, as to taxes which indemnification is claimed, resulted from the negligence, dishonesty or fraud referred to in (and amounts relating theretoi), the indemnification for which shall be governed solely and exclusively by Section 2.16, and ; or
(iii) in the event that the Agent breach any material provision of this Agreement or material applicable law.
(b) 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 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 an Indemnitee with respect testify in connection therewith or required to any Indemnified Matter that does not involve an act respond to procedures designed to discover information regarding or omission 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 Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting of 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 events itemized in 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 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), ) and (iii) and (iv) 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 they are incurred provided that the Corporation shall not, in any event, contribute to the extent incurred following (A) foreclosure amount paid or payable by the Agent or any Facility Agentof its Personnel as a result of such expense, loss, claim, damage or liability, any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer having become the successor amount in interest to any Warnaco Entity, and (B) attributable solely to acts excess of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf amount of the Facility Agents or such Lender.
(b) Group and aggregate gross proceeds that 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 Corporation received hereunder pursuant to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this AgreementAgency Agreement to which this indemnity is attached.
(c) Group 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 Borrower agreeAgent, jointly such consent not to be unreasonably withheld.
(d) The indemnity and severally, that any indemnification or other protection provided contribution obligations of the Corporation shall be in addition to any Indemnitee pursuant liability which the Corporation may otherwise have, shall extend upon the same terms and conditions to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full the Personnel of the Secured Obligations Agent and (ii) inure shall be binding upon and enure to the benefit of any Person who was at successors, assigns, heirs and personal representatives of the Corporation, the Agent and any time an Indemnitee of the Personnel of the Agent. The foregoing provisions shall survive the completion of professional services rendered under this Agreement or any other Loan DocumentAgreement.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Indemnities. (a) Group and the Borrower agree, jointly and severally, to 12.1 The Owner will indemnify and hold save harmless each Arranger, each Agent, each Lender the Mortgagee and each Issuer Receiver and each of their respective Affiliates, and each of the directors, officers, employees, agents, representative, attorneys, consultants and advisors of agent or attorney appointed under or pursuant 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”) this Deed from and against any and all expenses, claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suitstaxes, costs, disbursements duties, fees and expenses charges suffered, incurred or made by the Mortgagee or any Receiver or such agent or attorney:
(a) in the exercise or purported exercise of any kind rights, powers or nature discretions vested in it pursuant to the Mortgage and this Deed (including reasonable fees or either of them); or
(b) in the preservation or enforcement of the Mortgagee’ or any Receiver’s rights under the Mortgage and disbursements this Deed (or either of counsel to 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 Indemnitee) which agent or attorney may be imposed on, incurred by or asserted against any such Indemnitee retain and pay all sums in connection with or arising respect of the same out of any investigation, litigation money received under the powers conferred by the Mortgage and this Deed (or proceeding, whether or not any either of them). All 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 amounts recoverable by the Mortgagee or any act, event Receiver or transaction related such agent or attendant to attorney shall be recoverable on a full indemnity basis.
12.2 If any thereof, or sum due from the use or intended use of the proceeds of any of the Loans or Letters of Credit Owner under or in connection with any investigation of any potential matter covered hereby (collectivelythe 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 “Indemnified Mattersfirst currency”); provided) in which the same is payable under the Loan Agreement, however, that neither Group nor the Borrower shall not have Mortgage and this Deed (or any obligation of them) or under this Section 11.4 such order or judgement into another currency (“the second currency”) for the purpose of (i) to an Indemnitee with respect to any Indemnified Matter caused by making or resulting from filing a claim or proof against 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, Owner (ii) with respect obtaining an order or judgement in any court or other tribunal or (iii) enforcing any order or judgement given or made in relation to taxes the Loan Agreement, the Mortgage and this Deed (and amounts relating theretoor any of them), the indemnification for which Owner shall be governed solely indemnify and exclusively by Section 2.16, hold harmless the Mortgagee from and (iii) to an Indemnitee with respect to against any Indemnified Matter that does not involve an act loss or omission damage suffered as a result of any Warnaco Entity or affiliate thereof 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 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 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 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 the Facility Agents or such Lender.
(b) Group 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 judgement being obtained for any other sums due under or in respect of the Loan Agreement, the Mortgage 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 Deed (or any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreementthem).
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Deed of Covenant (FreeSeas Inc.), Deed of Covenant (FreeSeas Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements obligations and expenses (and losses relating to Borrower’s market activities as a consequence of becoming, or of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel any losses in connection therewith or with respect to this Agreement) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit warranties contained in Section 7 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to breach by Lender of any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee its covenants or agreements 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 the Facility Agents or such Lenderthis Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, 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 Warnaco Entity in connection with the transactions contemplated (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement.
(c) Group and the Borrower agree, jointly and severally, that In case any indemnification claim or other protection provided litigation which might give rise to any Indemnitee pursuant to this Agreement (including pursuant to obligation of a party under this Section 11.410 (each an “Indemnifying Party”) shall come to the 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 any other Loan Document 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 participate in and, if (i) survive payment in full the good faith judgment of the Secured Obligations 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) inure the Indemnifying Party admits that this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to direct the defense of any claim at its expense, but such defense shall be conducted by legal counsel reasonably satisfactory to the benefit Indemnified Party. An Indemnified Party shall not make any settlement of any Person who was at any time an Indemnitee claim or litigation under this Agreement or any other Loan DocumentSection 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) Group and the Each Borrower agreeagrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Administrative Agent, each Lender and Lender, each Issuer Person (other than the Borrowers) that is a party to a Secured Hedging Agreement, 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreement, (i) any other Loan Document, any Secured ObligationRelated Document, any Letter of Credit Disclosure Document, any Obligation (or any actthe repayment thereof), event or transaction related or attendant to any thereof, or 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 or on behalf of the Loans Seller, any Borrower or Letters any Affiliate of Credit or any of them in connection with any investigation of the foregoing and any potential matter covered hereby 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 neither Group nor the each Borrower shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that any Indemnitee. Furthermore, each Borrower waives and agrees not to assert against any Indemnitee, as determined by a court and shall cause each other Borrower to waive and not assert against any Indemnitee, any right of competent jurisdiction in a final non-appealable judgment or order, (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 contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, “Indemnified Matters include (i) Matters” includes all Environmental Liabilities and Costs Liabilities, including those arising from or connected with the past, present or future operations of any Warnaco Entity involving any property subject to a Collateral Documentfrom, or otherwise involving, or any actual, alleged or prospective damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real estate; (ii) property of any costs Borrower, whether or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whethernot, with respect to any of such mattersEnvironmental Liabilities, such any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, or the successor in successor-in-interest to any Warnaco EntityRelated Person, 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, each case except to the extent such Environmental Liabilities (i) are incurred solely following (A) foreclosure by any Facility Agent, Secured Party or following any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer Secured Party having become the successor in successor-in-interest to any Warnaco Entity, Borrower and (Bii) are attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such LenderIndemnitee.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Emeritus Corp\wa\), Credit Agreement (Emeritus Corp\wa\)
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Borrowers agree to indemnify and hold harmless the Administrative Agent, each Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativerepresentatives, 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 condition set forth in Article III) 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 fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Obligation, any Letter of Credit 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 any of the Term 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 Borrowers shall not have any obligation under this Section 11.4 (i) 10.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 liabilities and costs arising under any Environmental Liabilities and Costs arising from Law relating to or connected with the past, present or future operations of the Administrative Borrower or any Warnaco Entity involving any property subject to a Collateral Document, 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 on, upon or into such property or any contiguous real estateContaminants; (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Administrative Borrower or any Warnaco Entityof its Subsidiaries; (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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, 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 attributable to the gross negligence 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 willful action of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents or 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 to 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) Group and The Borrowers shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender and each Issuer the Lenders for, and hold each the Administrative Agent, each Arranger, each Lender and each Issuer the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Administrative Borrower, at the 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Administrative Borrower shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.410.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Tousa Inc), Second Lien Term Loan Credit Agreement (Tousa Inc)
Indemnities. (a) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements obligations and expenses (including, without limitation, any losses relating to Borrower’s market activities as a consequence of becoming, or of the risk of becoming, subject to Section 16(b) of the Exchange Act, including, without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel to any losses in connection therewith) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit warranties contained in Section 7 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to breach by Lender of any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee its covenants or agreements 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 the Facility Agents or such Lenderthis Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses, incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, 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 Warnaco Entity in connection with the transactions contemplated (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement.
(c) Group and the Borrower agree, jointly and severally, that In case any indemnification claim or other protection provided litigation which might give rise to any Indemnitee pursuant to this Agreement (including pursuant to obligation of a party under this Section 11.412 (each an “Indemnifying Party”) shall come to the 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 any other Loan Document 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 participate in and, if (i) survive payment in full the judgment of the Secured Obligations 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) inure the Indemnifying Party admits that this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to direct the defense of any claim at its expense, but such defense shall be conducted by legal counsel reasonably satisfactory to the benefit Indemnified Party. An Indemnified Party shall not make any settlement of any Person who was at any time an Indemnitee claim or litigation under this Agreement or any other Loan DocumentSection 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) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements obligations and expenses (and losses relating to Borrower’s market activities as a consequence of becoming, or of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel any losses in connection therewith or with respect to this Agreement) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit warranties contained in Section 7 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to breach by Lender of any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee its covenants or agreements 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 the Facility Agents or such Lenderthis Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses, incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, 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 Warnaco Entity in connection with the transactions contemplated (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement.
(c) Group and the Borrower agree, jointly and severally, that In case any indemnification claim or other protection provided litigation which might give rise to any Indemnitee pursuant to this Agreement (including pursuant to obligation of a party under this Section 11.412 (each, an “Indemnifying Party”) shall come to the 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 any other Loan Document 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 participate in and, if (i) survive payment in full the judgment of the Secured Obligations 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) inure the Indemnifying Party admits that this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to direct the defense of any claim at its expense, but such defense shall be conducted by legal counsel reasonably satisfactory to the benefit Indemnified Party. An Indemnified Party shall not make any settlement of any Person who was at any time an Indemnitee claim or litigation under this Agreement or any other Loan DocumentSection 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) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossesTaxes, penalties, actions, judgments, suits, costs, disbursements 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 kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel any losses in connection therewith or with respect to this Agreement) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit or warranties contained in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 order7, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively any breach by Section 2.16, and (iii) to an Indemnitee with respect to any Indemnified Matter that does not involve an act or omission Lender of any Warnaco Entity of its covenants or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting the foregoingagreements in this Agreement, Indemnified Matters include in each case under (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 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 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 that it has been finally adjudicated by a court of competent jurisdiction, evidenced by a final non-appealable order, that Borrower is liable to the Lender with respect to such claims, or (Aiii) foreclosure any Taxes relating to any payments under this Agreement made or to be made by Borrower or any Facility Agent, any of its affiliates to Lender or any Issuer, of its subsidiaries 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 the Facility Agents or such Lenderaffiliates.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, Taxes, penalties, obligations and other compensation made against expenses incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, or in connection with (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement, in each case to the extent that it has been finally adjudicated by a court of competent jurisdiction, evidenced by a final non-appealable order, that Borrower is liable to the Lender or any Issuer for any broker, finder or consultant with respect to such claim.
(c) In case any agreementclaim or litigation which might give rise to any obligation of a party under this Section 12 (each an “Indemnifying Party”) shall come to the attention of the party seeking indemnification hereunder (the “Indemnified Party”), arrangement 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 understanding made 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 participate in the defense of any claim and, to the extent that it shall wish, jointly with any other Indemnifying Party similarly notified, to assume the 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 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 such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnified Party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that Indemnified Party. An Indemnified Party shall not make any indemnification settlement of any claim or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to litigation under this Section 11.4) or any other Loan Document shall (i) survive payment in full 12 without the written consent of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan DocumentIndemnifying Party.
Appears in 2 contracts
Sources: Share Lending Agreement (Tilray Brands, Inc.), Share Lending Agreement (Opko Health, Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Borrowers agree to indemnify and hold harmless each Agent, Arranger, each Agent, each 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, representativetrustees, 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 condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 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 state, provincial, 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 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 any 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 neither Group nor the Borrower Borrowers shall not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting to the extent that such liability has resulted primarily from the gross negligence or willful misconduct of that Indemnitee or from any material breach of any of such Indemnitee's obligations under the Loan Documents to which it is a party, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (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 Matters" include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Company or any Warnaco Entity 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 the Company or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. Section 9601 et seq.) and applicable state state, provincial or other property transfer laws, whether, with respect to any of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Company or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Company or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Company or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such LenderIssuer.
(b) Group and The Borrowers shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group 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 Borrower agreeCompany, jointly 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 to defend against such investigation, litigation or proceeding or requested Remedial Action, the Company shall promptly do so and severallysuch 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 or requested Remedial Action, shall vitiate or in any way impair any Borrower's 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 (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive the termination of this Agreement or payment in 124 full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis 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 (aa “Holder Indemnified Party”), 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) Group 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 Borrower agreeCompany will reimburse such Holder Indemnified Party promptly upon demand, jointly for any reasonable documented, out-of-pocket 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 or (iii) any violation of alleged 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 performance of its obligations under this 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 the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and severally, effect regardless of any investigation made by or 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 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 each Arrangerthe Company, any underwriter for the Company, any other person participating in the distribution, each Agentperson, each Lender and each Issuer and each of their respective Affiliatesif any, who controls the Company, such underwriter or such other person and each of the foregoing person’s respective officers, directors, officers, employees, agentspartners, representativemembers, attorneys, consultants and advisors of advisors, agents or to any of the foregoing other representatives (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 a “IndemniteeCompany Indemnified Party”) from and against any and all claimslosses, damages, claims, liabilities, obligationscosts 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based on (i) any untrue or alleged untrue statement of any kind material fact contained in the Registration Statement or nature included in the prospectus, as amended or supplemented, or (including 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, 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 fees and disbursements of counsel to any such Indemnitee) which may be imposed on, legal or other expenses incurred by or asserted against any such Indemnitee them in connection with investigating, preparing to defend or arising out of any investigation, litigation defending against or proceeding, whether or not any such Indemnitee is appearing as a third-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 witness in connection with any investigation 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 potential 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 covered hereby (collectivelyof 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 “Indemnified Matters”)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; providedprovided 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, howeverthe 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, that neither Group nor the Borrower shall indemnifying party will not have be liable to such indemnified party pursuant to the provisions of said Sections 2.8.1 or 2.8.2 for any obligation under this Section 11.4 legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) to an Indemnitee the indemnified party shall have employed counsel in accordance with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct provision of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or orderthe preceding sentence, (ii) with respect the indemnifying party shall not have employed counsel reasonably satisfactory to taxes (the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action and amounts relating thereto)within 15 days after written notice of the indemnified party’s intention to employ separate counsel pursuant to the previous sentence, the indemnification for which shall be governed solely and exclusively by Section 2.16, and or (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 entry of any judgment or enter into any settlement if such settlement or judgment requires an Indemnitee with 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 to such claim or litigation.
2.8.4 If recovery is not available under the foregoing indemnification provisions, for 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 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 reason other matter 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 possessionthan as specified therein, the successor parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses in interest such proportion as is appropriate to any Warnaco Entity, or reflect the owner, lessee or operator relative fault 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 each of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such Lender.
(b) Group indemnifying party 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 Warnaco Entity indemnified party in connection with the transactions contemplated statements, omissions, or other actions that 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by this Agreementsuch Holder.
2.8.5 Notwithstanding anything to the contrary hereunder, no person or entity guilty of fraudulent misrepresentation (cwithin the meaning of Section 11(f) Group and of the Borrower agree, jointly and severally, that any indemnification or other protection provided Securities Act) shall be entitled to any Indemnitee pursuant to this Agreement (including contribution pursuant to this Section 11.4) 2.8 from any person or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person entity who was at any time an Indemnitee under this Agreement or any other Loan Documentnot guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Taboola.com Ltd.), Investors’ Rights Agreement (Taboola.com Ltd.)
Indemnities. (a) Group The Parent and the Borrower agree, Borrowers jointly and severally, severally agree to and hereby do indemnify and hold harmless each Arranger, each Administrative Agent, each the Collateral Agent, Arrangers, Issuers, and Lender and each Issuer and each of (together with their respective AffiliatesAffiliates (and controlling persons) and the respective officers, and each of the directors, officers, employees, agents, representative, attorneys, consultants members (and advisors successors and assigns) of or to any each of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (foregoing, 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 reasonable, documented and customary fees, disbursements and expenses of counsel 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) which 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 theretothereto 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 Secured Obligation, any Letter of Credit 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 Borrowers shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to (i) any Indemnified Matter caused by or resulting from the gross negligence negligence, bad faith or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or orderorder or order of an arbitral tribunal, (ii) with respect to taxes (and amounts relating thereto)a material breach of the Loan Documents by such Indemnitee, the indemnification for which shall be governed solely and exclusively as determined by Section 2.16, a court of competent jurisdiction in a final non-appealable judgment or order or order of an arbitral tribunal and (iii) to any action brought by one Indemnitee against another Indemnitee (except in its capacity as an Indemnitee with respect to any Indemnified Matter that Agent) which does not involve an act or omission by the Parent or any of its Affiliates or (iv) any Warnaco Entity settlement entered into by such Indemnitee without the Parent’s written consent (such consent not to be unreasonably withheld, conditioned or affiliate thereof 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 brought a final and non-appealable judgment by one a court of competent jurisdiction, the Parent agrees to indemnify and hold harmless each Indemnitee from and against another Indemniteeany 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 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 Warnaco Entity 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 Warnaco Entity; of their respective Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Parent or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Parent or any Warnaco Entity 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 (Aor deed in lieu thereof) foreclosure by any Facility Administrative Agent, any Lender or any Issuer, or any Facility Administrative Agent, the Collateral Agent, any Lender or any Issuer having become the successor in interest to the Parent, the Borrowers, or any Warnaco Entity, of their respective Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility Agentssuch Administrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents such Administrative Agent, such Lender or such LenderIssuer. This Section 11.4(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.
(b) Group The Parent and the each Borrower shall, shall and does hereby jointly and severally, 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, any Lender or and any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group Promptly after receipt by an Indemnitee of service of any complaint or the 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 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 Borrower agreepayment 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 legal defenses available to 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, severally agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive the termination of this Agreement and the payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (McDermott International Inc), Superpriority Senior Secured Credit Agreement (McDermott International Inc)
Indemnities. (a) Group The Company shall pay, or 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 the Borrower agreeLender in connection with the negotiation, jointly preparation, execution and severallydelivery of this Agreement, the Note, the Warrant, the Stock Issuance Agreement, and any other document required hereunder or thereunder; (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 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 this Agreement, the Note, the Warrant, the Stock Issuance Agreement, or 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 contesting the imposition of any such tax, and any and all liability with respect to or resulting from any delay in paying the same, whether such taxes are levied upon the Lender, the Company or otherwise.
(b) The Company agrees to indemnify the Lender against any and hold harmless each Arrangerall losses, each Agentclaims, each damages, liabilities and expenses, (including, without limitation, reasonable attorneys' fees and expenses) incurred by the Lender arising out of or resulting from (i) any acquisition or attempted acquisition of stock or assets of another person or entity by the Company or any subsidiary, (ii) the use of any of the proceeds of the loan made hereunder by the Company for the making or furtherance of any such acquisition or attempted acquisition, (iii) the construction or operation of any facility owned or operated by the Company or any subsidiary, or resulting from any pollution or other environmental condition on the site of, or caused by, any such facility, (iv) the negotiation, preparation, execution, delivery and each Issuer and each enforcement of their respective Affiliatesthis Agreement, the Note, the Warrant, the Stock Issuance Agreement, and each of the directorsany other document required hereunder or thereunder, officersincluding without limitation any amendment, employeessupplement, agents, representative, attorneys, consultants and advisors modification or waiver of or to any of the foregoing or the consummation or failure to consummate the transactions contemplated hereby or thereby, or the performance by the parties of their obligations hereunder or thereunder, (including those retained in connection with the satisfaction v) any claim, litigation, investigation or attempted satisfaction of proceedings related to 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 proceedingforegoing, whether or not any such Indemnitee the Lender 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 such indemnity shall not have apply to any obligation such losses, claims, damages, liabilities or related expenses arising from (A) any breach by the Lender of his obligations under this Section 11.4 Agreement, or in his fiduciary duties as a director of the Company for which he would not otherwise be entitled to indemnification as a director of the Company, (iB) any commitment made by the Lender to an Indemnitee with respect to any Indemnified Matter caused a person other than the Company which would be breached by the performance of the Lender's obligations under this Agreement or resulting from the (C) Lender's gross negligence or willful misconduct of misconduct; and provided further that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (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 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 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), ) and (iii) of this paragraph shall apply only to losses, claims, damages, liabilities and expenses arising out of or resulting from third party claims.
(ivc) aboveThe foregoing agreements and indemnities shall remain operative and in full force and effect regardless of termination of this Agreement, the consummation of or failure to consummate either the extent incurred following (A) foreclosure transactions contemplated by any Facility Agent, any Lender this Agreement or any Issueramendment, supplement, modification or waiver, 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 Facility Agentother document required hereunder or thereunder, 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 the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and Lender, or the Borrower agree, jointly and severally, that any indemnification content or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit accuracy of any Person who was at any time an Indemnitee representation or warranty made under this Agreement or any other Loan Documentdocument 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) Group and the Each Borrower agreeagrees, jointly and severally, to indemnify and hold harmless each Agent, each Arranger, each AgentLender, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIISection 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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Obligation, any Letter of Credit 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 Borrowers shall not have any obligation liability under this Section 11.4 (i) 10.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting that has resulted from the gross negligence or willful misconduct of that Indemniteesuch 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, (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 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 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 the Facility Agents or such Lender.
(b) Group and the Each Borrower shall, shall jointly and severally, severally indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each Agentthe Agents, each Arrangerthe Arrangers, each Lender the Lenders and each Issuer the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arrangerthe Arrangers, Lender or any Issuer 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 Warnaco Entity Loan Party or any of the Parent Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group 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 agreeto defend against such investigation, jointly litigation or proceeding, such Borrower shall promptly do so and severallysuch 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.
(d) Each Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.410.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP), Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. (a) Group The Parent and the Borrower agree, Applicants jointly and severally, severally agree to and hereby do indemnify and hold harmless each Arranger, each the Administrative Agent, each Lender the Collateral Agent, Arrangers, Bookrunners, Syndication Agents, Issuers and each Issuer and each of Participants (together with their respective AffiliatesAffiliates (and controlling persons) and the respective officers, and each of the directors, officers, employees, agents, representative, attorneys, consultants members (and advisors successors and assigns) of or to any each of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (foregoing, 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 reasonable, documented and customary fees, disbursements and expenses of counsel 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) which 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 theretothereto 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 Loan Credit Document, any Secured Obligation, any Letter of Credit 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 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 Applicants shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to (i) any Indemnified Matter caused by or resulting from the gross negligence negligence, bad faith or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or orderorder or order of an arbitral tribunal, (ii) with respect to taxes (and amounts relating thereto)a material breach of the Credit Documents by such Indemnitee, the indemnification for which shall be governed solely and exclusively as determined by Section 2.16, a court of competent jurisdiction in a final non-appealable judgment or order or order of an arbitral tribunal and (iii) to any action brought by one Indemnitee against another Indemnitee (except in its capacity as an Indemnitee with respect to any Indemnified Matter that Agent) which does not involve an act or omission by the Parent or any of its Affiliates or (iv) any Warnaco Entity settlement entered into by such Indemnitee without the Parent’s written consent (such consent not to be unreasonably withheld, conditioned or affiliate thereof 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 brought a final and non-appealable judgment by one a court of competent jurisdiction, the Parent agrees to indemnify and hold harmless each Indemnitee from and against another Indemniteeany 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 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 Warnaco Entity 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 Warnaco Entity; of their respective Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Parent or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Parent or any Warnaco Entity 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 (Aor deed in lieu thereof) foreclosure by any Facility the Administrative Agent, any Lender Participant or any Issuer, or any Facility the Administrative Agent, the Collateral Agent, any Lender Participant or any Issuer having become the successor in interest to the Parent, the Applicants, or any Warnaco Entity, of their respective Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender Participant or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Participant or such LenderIssuer. This Section 11.4(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.
(b) Group The Parent and the Borrower shall, each Applicant shall and does hereby jointly and severally, severally indemnify each Agent, each Arranger, each Lender Participant and each Issuer for, and hold each Agent, each Arranger, each Lender Participant 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 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 Warnaco Entity Credit Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group Promptly after receipt by an Indemnitee of service of any complaint or the 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 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 Borrower agreepayment 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 legal defenses available to 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, severally agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Credit Document shall (i) survive the termination of this Agreement and the payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Credit Document.
Appears in 2 contracts
Sources: Letter of Credit Agreement (McDermott International Inc), Letter of Credit Agreement (McDermott International Inc)
Indemnities. (a) Group and the Borrower agree, jointly and severally, If any Registrable Shares are included in a registration statement pursuant to this Agreement:
6.1. The Company will indemnify and hold harmless each Arrangerharmless, to the fullest extent permitted by law, each AgentHolder, each Lender and each Issuer and each of their respective Affiliatesany underwriter (as defined in the Securities Act) for such Holder, and each of person, if any, who controls such Holder or such underwriter (collectively and individually referred to as the directors"Indemnified Party"), 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 claimslosses, damages, claims, liabilities, obligations, losses, penalties, actions, judgments, suitsjoint or several, costs, disbursements and expenses (including any amounts paid in any settlement effected with the Company’s consent, which consent will not be unreasonably withheld) to which such 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 are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented (including 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 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 fees and disbursements of counsel to legal or any such Indemnitee) which may be imposed on, other expenses incurred by or asserted against any such Indemnitee them in connection with or arising out of any investigationinvestigating, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirectpreparing to defend, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulationdefending against, 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 appearing as a third-party witness in connection with any investigation of any potential matter covered hereby (collectivelysuch loss, the “Indemnified Matters”)claim, damage, liability, action, or proceeding; provided, however, that neither Group nor the Borrower shall Company will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure by that any Facility Agentsuch loss, any Lender or any Issuerdamage, 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 Facility Agentunderwriter of any 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 Lender such claim, loss, damage, liability, or 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 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 the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Indemnified Party, and regardless of any Warnaco Entity sale in connection with such offering by such Holder. Such indemnity shall survive the transactions contemplated transfer of securities by this Agreementa 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 (ccollectively 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) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement Indemnifiable Party may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (including pursuant to this Section 11.4) or any other Loan Document shall actions or proceedings in respect thereof), costs, or expense arise out of or are based on (i) survive payment any untrue statement or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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 Company of the Securities Act or the Securities and Exchange Act, or any rules or 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 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 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 in the final prospectus, such indemnity agreement shall not inure to the benefit of (i) the Company, and (ii) any Person who 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 time an Indemnitee under this Agreement or underwriter of any other Loan Document.of its due diligence obligations; provided, further, that the indemnity agreement contained in this
Appears in 2 contracts
Sources: Warrant Agreement (Nur Macroprinters LTD), Warrant Agreement (Nur Macroprinters LTD)
Indemnities. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering of Ordinary Shares pursuant to this Section 2:
2.9.1 The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder and each Issuer and each of their respective Affiliatesany underwriter (as defined in the Securities Act) 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, agents, representative, attorneys, consultants employees and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction agents of any of the conditions set forth in Article III) them (each such Person being each, an “IndemniteeIndemnified Person”) from and against any and all claimslosses, damages, claims, liabilities, obligationsjoint or several, costs and expenses (including 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, insofar as such losses, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon: (i) any untrue statement or alleged untrue statement of any kind material fact contained, on the effective date thereof, in the Registration Statement or nature included in any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto; (including reasonable fees and disbursements 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 counsel to the circumstances in which they are made, not misleading; or (iii) any such Indemnitee) which may be imposed onviolation by the Company of the Securities Act, incurred by the Exchange Act or asserted against any such Indemnitee 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 arising out of any investigation, litigation attorney’s fees 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 expenses incurred by them in connection with any investigation of any potential matter covered hereby (collectivelyinvestigating, the “Indemnified Matters”)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 neither Group nor the Borrower shall Company will not have any obligation under this Section 11.4 (i) to an Indemnitee with respect be liable to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction Person in a final non-appealable judgment or order, (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 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 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, case to the extent incurred following (A) foreclosure 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 Facility Agentunderwriter 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 Lender such claim, loss, damage, liability or any Issuer, or any Facility Agent, any Lender or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts consent of the ArrangersCompany, the Facility Agentswhich consent shall not be unreasonably withheld, such Lender conditioned or such Issuer or delayed. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Holder, the underwriter or any Warnaco Entity 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 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 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 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 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 legal or other expense subsequently incurred by such indemnified party in connection with the transactions contemplated 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 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 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 this Agreementthe claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(c) Group 2.9.4 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 terms thereof shall be entitled to contribution to liabilities and expenses in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the Borrower agreeindemnified party in connection with the statements, jointly omissions, or other actions that 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 severallyaccess to information concerning the matter with respect to which the claim was asserted, that the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by 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 other protection provided to any Indemnitee pursuant to this Agreement (including contribution pursuant to this Section 11.4) 2.9 from any person or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person entity who was at any time an Indemnitee under this Agreement or any other Loan Documentnot guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Shareholders' Agreement (Endurance Acquisition Corp.), Registration Rights Agreement (Endurance Acquisition Corp.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, to The LEP shall indemnify and hold harmless each Arranger, each Agent, each Lender keep the Local Authority fully indemnified at all times for 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 against all claims (including those retained in connection with any claim made by any person (including any Prospective Tenderer, Tenderer or Preferred Tenderer) that is not awarded a contract), demands or notices which may be brought or alleged or threatened against the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an “Indemnitee”) Local Authority and from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind Direct Losses or nature (including reasonable fees and disbursements of counsel fines which the Local Authority may suffer or incur in relation to any such Indemnitee) claims, demands or notices which may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out occur as a result 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 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 be an additional Prohibited Act for the LEP or any Associated Entity (or anyone acting on its behalf) to: accept or agree to accept any gift or consideration of any potential matter covered hereby kind as an inducement or reward: for doing or not doing (collectively, or for having done or not having done) any act in relation to the “Indemnified Matters”)obtaining or performance of any subcontract to this Agreement; provided, however, that neither Group nor the Borrower shall or for showing or not have any obligation under this Section 11.4 (i) to an Indemnitee with respect showing favour or disfavour to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction person in a final non-appealable judgment or order, (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 relation to any Indemnified Matter that does not involve an act or omission of sub-contract to this Agreement, enter into 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 sub-contract relating 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 this Agreement in connection with which commission has been paid or has been agreed to be paid unless, before the sub-contract is made, particulars of any Remedial Action concerning such commission and of the terms and conditions of 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to any such agreement for the payment of such matters, such Indemnitee is a mortgagee pursuant commission have been disclosed in writing to any leasehold mortgage, a mortgagee the Local Authority and they have consented to the same (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 (itheir absolute discretion), (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 the Facility Agents or such Lender.
(b) Group and the Borrower shall, jointly provisions of clause 17.4 (Prohibited Acts and severally, indemnify each Agent, each Arranger, each Lender prohibition on corruption) (changed according to context) shall apply 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 Warnaco Entity in connection with the transactions contemplated by this Agreementbe construed accordingly.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Strategic Partnering Agreement, Strategic Partnering Agreement
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, each Agent, 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, and each of the directors, officers, employees, agents, representativetrustees, shareholders, controlling persons, members, representatives, attorneys, consultants and consultants, advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 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 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 not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting to the extent it that has resulted primarily from the bad faith, 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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 the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, the Collateral Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the ArrangersAdministrative Agent, the Facility AgentsCollateral Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents such Agent, such Lender or such LenderIssuer.
(b) Group and The Borrower shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arrangerthe Collateral Agent, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arrangerthe Collateral Agent, each Lender the Lenders and each Issuer issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arrangerthe Collateral Agent, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, 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 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch 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 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 Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under the Existing Credit Agreement, any other Existing Loan Document, this Agreement or any other Loan Document.
(e) Notwithstanding the foregoing Section 11.4, an Indemnitee shall effect no settlement or any 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. (a) 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 Notwithstanding 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 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 Loan DocumentIndemnified Person arising, any Secured Obligationdirectly or indirectly, any Letter out 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 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) any failure to obtain spousal consents in connection with any acquisition of shares (participation interests) in any of the Group Companies;
(b) any failure to obtain necessary corporate approvals in connection with any acquisition or transfer of shares (participation interests) in any 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 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 Group Company not having been validly carried out in accordance with the Applicable Laws, in each case, prior to Completion (“Title Indemnity”);
11.11.2 (i) any failure to carry out the Restructuring in accordance with the agreed plan of the Restructuring set out in Error! Reference source not found. (Restructuring), and/or (ii) any Third Party Claims in connection with the Restructuring, including where they arise out of a failure to comply with Applicable Law (“Restructuring Indemnity”);
11.11.3 any loss of the Intellectual Property Rights in Rutaxi Platform, whether in whole or in part, as the result of or in connection with any event, fact, circumstance, or action taking place prior to the Completion Date, including as the result of the Restructuring (the “IP Indemnity”);
11.11.4 any claim in respect of an unlawful use of any potential matter covered hereby rights in any computer software against any Group Company as the result of or in connection with any event, fact, circumstance, or action taking place prior to the Integration Completion Date (collectively, the “Indemnified MattersIT Licences Indemnity”); provided, however, that neither if prior to Completion the Seller procures that the Group nor Companies acquire the Borrower Agreed Software Licences pursuant to Clause 17.10.1, such IT Licences Indemnity shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect only apply to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct claim in respect of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (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 unlawful use of any Warnaco Entity rights in any computer software against any Group Company as the result of 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 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 Environmental Lawevent, including CERCLA and applicable state property transfer lawsfact, 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 Entitycircumstance, 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, action taking place prior 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.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) Group and The Borrowers shall indemnify the Borrower agreeAdministrative Agent, jointly and severallythe Collateral Agent, to indemnify and hold harmless each the Lead Arranger, each the Documentation Agent, each Lender the Syndication Agent, the Issuing Bank and each Issuer and each of their respective AffiliatesLender, and each Related Party 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) Persons (each such Person being called an “Indemnitee”) from against, and against hold each Indemnitee harmless from, on an after-Tax basis, any and all losses, claims, damages, liabilities, obligations, losses, penalties, actionsliabilities and related expenses, judgmentsincluding the fees, suits, costs, disbursements and expenses of any kind or nature (including reasonable fees charges and disbursements of any external counsel to for any such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any 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 such Letter of Credit), (iii) any actual or arising out alleged presence or release of Hazardous Materials on or from any investigationproperty owned or operated by the Borrowers or any of their Subsidiaries, litigation or proceedingany Environmental Liability related in any way to the Borrowers or any of their Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or not any such other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, 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 as to any thereofIndemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or the use or intended use related expenses are finally determined by a court 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 not competent jurisdiction to have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting resulted from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (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 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 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agree, Lessees hereby jointly and severallyseverally indemnify each of the Lessors, to indemnify and hold harmless each Arranger, each Agent, each Lender and each Issuer and each any of their respective Affiliatessuccessors, assigns, creditors (including any agent for a group of creditors; provided that the Lessees’ obligation to indemnify the expenses of any such agent under this Section 4.1(a) shall be limited to the expenses of two agents for each class of creditors) and pledgees, and each of the directorstheir respective employees, officers, employees, agents, representative, attorneys, consultants directors 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) equityholders (each such Person being an a “Lessee Indemnitee”) from and against hold any Lessee Indemnitee harmless from, any and all losses, claims, damages, liabilities, obligations, lossescharges, penalties, actions, judgments, suits, costs, disbursements levies and related expenses (including the reasonable and documented fees and expenses of counsel for Lessors or any kind other Lessee Indemnitee), including, on account of funds borrowed, contracted for or nature (including reasonable fees and disbursements of counsel used to fund any such Indemnitee) which may be imposed on, incurred amount payable by or asserted against any such a Lessee Indemnitee in connection with the purchase or arising out the lease of any investigationEquipment subject to an Equipment Lease or proceedings related thereto (the “Liabilities”) incurred by any Lessee Indemnitee, litigation without duplication of any other amount paid, as a result of:
(i) an Equipment Lease (or proceedingany part of it) being void, voidable or unenforceable for any reason;
(ii) the Equipment being lost, stolen, damaged, or destroyed by, or confiscated from, in each case, any Lessee;
(iii) any sublease of any item of Equipment;
(iv) any information provided by or on behalf of a Sprint Party or any Affiliate for inclusion in an Equipment Lease Schedule being incorrect;
(v) an Equipment Lease terminating in relation to some or all of the Equipment before the end of the Term of that Equipment Lease, except as otherwise expressly contemplated under this Agreement;
(vi) any failure by a Lessee to comply with any of its obligations in the Lease Documents to which it is a party;
(vii) any Lease Event of Default; or
(viii) the ordering, acquisition, delivery, installation, operation or rejection of the Equipment, the possession of any property to which it may be attached from time to time, maintenance, use, condition, ownership or operation of any item of Equipment, and by whomsoever owned, used, possessed or operated, during the Term of any Equipment Lease with respect to that item of Equipment, the existence of latent and other defects (whether or not discoverable by a Lessor or a Lessee) any such Indemnitee is a party theretoclaim in tort for negligence or strict liability, whether directand any claim for patent, indirect, trademark 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 thereofcopyright infringement, or the use loss, damage, destruction, theft, removal, return, surrender, sale or intended use other disposition of the proceeds of Equipment, or any of the Loans item thereof, including claims involving or Letters of Credit alleging environmental damage, or in connection with any investigation of any potential matter covered hereby (collectivelycriminal or terrorist act, the “Indemnified Matters”)or for whatever other reason whatsoever; provided, however, that neither Group nor the Borrower shall Lessees’ indemnity will not have any obligation under this Section 11.4 (i) to an Indemnitee with respect extend to any Indemnified Matter caused by or resulting from Liability to the gross negligence or willful misconduct of that Indemnitee, as extent determined by a court of competent jurisdiction in a by final non-appealable and nonappealable judgment or order, (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 onthe gross negligence, upon bad faith or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 willful misconduct 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 the Facility Agents or such LenderLessee Indemnitee.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Master Lease Agreement (SPRINT Corp)
Indemnities. (a) Group 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 Italian Issuer, the Agent, the Lead Arranger, the Calculation Agent, the Depositor, the Issuers, the Liquidity Banks and the Borrower agreeFund Subscribers, jointly and severally, to indemnify and hold harmless each Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, Affiliates and each officer, director, employee and agent 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”"Indemnified Party") from and against any and all damages, losses, claims, damages, liabilities, obligationscosts 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) to the extent resulting from the gross negligence (faute lourde) or willful misconduct (dol) on the part of such Indemnified Party or the breach by an 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, penaltiesclaims, actionsliabilities, judgments, suits, costs, disbursements costs 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 Indemnified Party as a result of:
(a) any claims, actions, suits or arising out of proceedings commenced by 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 Debtor or any act, event of its Affiliates 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 third party in connection with any investigation of any potential matter covered hereby (collectivelythe Sold Receivables, the “Indemnified Matters”); provided, however, that neither Group nor transactions out of which they arose or the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect goods or services the sale or provision of which gave rise to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender.Sold Receivables;
(b) 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, reliance on any and all claims for brokerage commissions, fees and other compensation representation or warranty or statement made against any Agent, Arranger, Lender or any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding deemed made by or on behalf of any Warnaco Entity Seller, the Centralising Unit or GOODYEAR EUROPE BV under or in connection with the transactions contemplated by this Agreement.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) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit failure of any Person who was at any time an Indemnitee Seller, the Centralising Unit or GOODYEAR EUROPE BV to perform its duties or obligations under this Agreement or the other Transaction Documents;
(d) any governmental investigation, litigation or proceeding related to this Agreement or in respect of any Sold Receivable and/or any Refinanced Sold Receivables;
(e) the failure by any Seller (or any of its Affiliates) to comply with any applicable law with respect to any Sold Receivable or Refinanced Sold Receivable (or any contract by which it arose or by which it is evidenced or governed), or the nonconformity of any Sold Receivable or any Refinanced 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 or any Refinanced Sold Receivable;
(f) any failure of the Purchaser to have and maintain ownership of the Sold Receivables, free and clear of any Liens other than those contemplated in the Transaction Documents, or any attempt by any person to avoid, rescind or set aside any sale of Ongoing Purchasable Receivables and/or Remaining Purchasable Receivables to the Purchaser as contemplated by the Transaction Documents;
(g) 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 or Refinanced 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 commingling of collections on Sold Receivables and/or Refinanced Sold Receivables with any other Loan Documentmonies of the Sellers, the Centralising Unit or any of their Affiliates;
(j) the use by the Sellers or their Affiliates of any monies received by them in payment of the purchase price of Sold Receivables or Refinanced Sold Receivables;
(k) any products liability or environmental claim, or personal injury or property damage claim, or other similar or related claim or action of any sort whatsoever arising out of or in connection with goods, merchandise or services which relates to any Sold Receivables or Refinanced Sold Receivables;
(l) (i) a Payment and/or a Transfer Deed ceases to achieve a perfect transfer of Remaining Purchasable Receivables as set out in the relevant Receivables Purchase Agreement; (ii) a payment and/or a Transfer Deed ceases to achieve a perfect transfer of Refinanced Remaining Purchasable Receivables as set out in the Italian Receivables Purchase Agreement; and
(m) any Conformity Warranty for Sold Receivables made by a Seller under Article 17 (Conformity Warranties for Ongoing Purchasable Receivable and Remaining Purchasable Receivables) (without regard to any knowledge therein) is found to have been inaccurate at the date it was made. The Sellers and the Centralising Unit shall pay on demand to the Purchaser 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: Amendment No. 10 to the General Master Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Borrowers agree to indemnify and hold harmless each ArrangerFacility Agent, each the Collateral 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, suits and reasonable 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 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 any of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby hereby, including the arrangement and syndication of the Facilities (collectively, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower Borrowers shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 connection with any Remedial Action concerning any Warnaco EntityGroup Member; (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 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 EntityGroup Member, or the owner, lessee or operator of any property of any Warnaco Entity 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 incurred following (A) foreclosure by any the such Facility AgentAgents, any Lender or any Issuer, or any either Facility Agent, any Lender or any Issuer having become the successor in interest to any Warnaco EntityGroup Member, and (B) attributable solely to acts of the Arrangers, the such Facility AgentsAgent, such Lender or such Issuer or any agent on behalf of the such Facility Agents Agent or such Lender.
(b) Group and The Borrowers shall indemnify the Borrower shallFacility Agents, jointly and severally, indemnify each the Collateral Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Facility Agents, the Collateral Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Facility Agents, the Collateral Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any other Group Member in connection with the transactions contemplated by this Agreement.
(c) Group Each Facility Agent, each Lender and each Issuer agree that in the event that any such investigation, litigation or proceeding set forth in clause (b) above is asserted or threatened in writing or instituted against it or any other Indemnitee, or any Remedial Action, is requested of it or any of its officers, directors, Facility Agents and employees, for which any Indemnitee may desire indemnity or defense hereunder, such Indemnitee shall promptly notify the Borrowers in writing.
(d) The Borrower, at the request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Borrowers, in any event, may participate in the defense thereof with legal counsel of the Borrowers’ choice. In the event that such Indemnitee requests the Borrower agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrowers shall promptly do so and severallysuch 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 or requested Remedial Action, shall vitiate or in any way impair the Borrowers’ obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(e) The Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Memec Inc)
Indemnities. (a) Group and the Borrower agreeThe Company agrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Collateral Agent, each Lender and Holder, each Issuer holder of a Warrant 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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, Indenmitee in any manner matter relating to or arising out of, in connection with or as a result of this Agreement(i) any Warrant, any other Loan Note Document, any Secured ObligationRelated Document, any Letter of Credit Disclosure Document, any Obligation (or any actthe repayment thereof), event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of any from the issuance and sale of the Loans Notes and Warrants, any Related Transaction, or Letters of Credit any securities filing of, or with respect to, any Group Member (including, without limitation, any indemnification liability that the Collateral Agent may incur in connection with any investigation control agreement or other document executed by the Collateral Agent in connection with the transactions contemplated hereby), (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 of any potential matter covered hereby 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 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 neither Group nor the Borrower Company shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order; provided, (ii) with respect to taxes (and amounts relating thereto)further, the indemnification for which that no Note Party shall be governed solely liable for any indemnification to any Indemnitee to the extent any suit, action, proceeding, claim, damage, loss, liability or expense arises in connection with a dispute against another Secured Party based on the action or inaction of such other Secured Party and exclusively that in any case is not caused by Section 2.16any action or inaction of any Note Party. Furthermore, each of Holdings and the Company waives and agrees not to assert against any Indenmitee, and (iii) shall cause each other Note Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, “Indemnified Matters include (i) Matters” includes all Environmental Liabilities and Costs Liabilities, including those arising from from, or connected with the pastotherwise involving, present or future operations any property of any Warnaco Entity involving Related Person or any property subject to a Collateral Documentactual, alleged or prospective damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real estate; (ii) property of any costs Related Person, whether or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whethernot, with respect to any of such mattersEnvironmental Liabilities, such any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in successor-in-interest to any Warnaco Entity, Related Person or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosureRelated Person through any foreclosure action, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, each case except to the extent such Environmental Liabilities (i) are incurred solely following (A) foreclosure by any Facility Agent, Secured Party or following any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer Secured Party having become the successor in 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations Note Party and (ii) inure are attributable to the benefit acts of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentsuch Indemnitee.
Appears in 1 contract
Sources: Securities Purchase Agreement (Film Department Holdings, Inc.)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each the Administrative Agent, the 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 condition set forth in Article IIIIII (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 of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 Secured Obligation, any Letter of Credit 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 any of the 101 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 Matters" include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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 any Warnaco Entity; Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such LenderIssuer.
(b) Group and The Borrower shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, at the 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.. 102
Appears in 1 contract
Sources: Credit Agreement (Aviall Inc)
Indemnities. (a) Group and the The Borrower agreeagrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Administrative Agent, each Lender and each Issuer Lender, 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreementany action, investigation, proceeding or other claim arising from or related to (i) any other Loan Document, any Secured ObligationObligation (or the repayment thereof), 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 Loan, any Related Transaction, or Letters of Credit any securities filing of, or with respect to, any Group Member, (ii) Contractual Obligation entered into in connection with any investigation 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 potential matter covered hereby 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 neither Group nor the Borrower shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, (ii) with respect each of Holdings and the Borrower waives and agrees not to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16assert against any Indemnitee, and (iii) shall cause each other Loan Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, “Indemnified Matters include (i) Matters” includes all Environmental Liabilities and Costs Liabilities, including those arising from from, or connected with the pastotherwise involving, present or future operations any property of any Warnaco Entity involving Related Person or any property subject to a Collateral Documentactual, alleged or prospective damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real estate; (ii) property of any costs Related Person, whether or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whethernot, with respect to any of such mattersEnvironmental Liabilities, such any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in successor-in-interest to any Warnaco Entity, Related Person or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosureRelated Person through any foreclosure action, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, each case except to the extent such Environmental Liabilities (i) are incurred solely following (A) foreclosure by any Facility Agent, Secured Party or following any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer Secured Party having become the successor in 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations Party and (ii) inure are attributable primarily to the benefit acts of any Person who was at any time an Indemnitee under this Agreement or any other Loan Documentsuch Indemnitee.
Appears in 1 contract
Indemnities. (a) Group and the Each Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Arranger, each the Administrative Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article III) 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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 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 Related Document, 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 Borrowers shall not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or (i) to the extent resulting from the gross negligence or willful misconduct of that Indemnitee, Indemnitee or any of its Affiliates as determined by a court of competent jurisdiction in a final non-appealable judgment or order, order or (ii) with respect to taxes (and amounts relating thereto)the extent resulting from a claim brought against such Indemnitee by a Borrower for breach in bad faith of such Indemnitee’s obligations under any Loan Document, 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 if such Loan Party has obtained a final non-appealable judgment or omission order in its favor on such claim from a court of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemniteecompetent jurisdiction. Without limiting the foregoing, “Indemnified Matters Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of any Warnaco Entity the Group Members 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 any Warnaco Entity; the Group Members, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Warnaco Entitya Group Member, or the owner, lessee or operator of any property of any Warnaco Entity the Group Members 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 (A) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to any Warnaco Entity, a Group Member and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents or Administrative Agent, such Lender.
(b) Group Each Borrower, 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 such Borrower, in any event, may participate in the defense thereof with legal counsel of its choice. In the event that such indemnitee requests the Borrower shallto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so 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 such Indemnitee shall have the right to any agreement, arrangement or understanding made by or on behalf have legal counsel of any Warnaco Entity its choice participate in connection with the transactions contemplated by this Agreementsuch defense.
(c) Group and the The Borrower agree, jointly and severally, agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Prologis)
Indemnities. (a) Group and Whether or not the Borrower transactions contemplated hereby shall be consummated, the Obligors agree, jointly and severally, to indemnify defend, indemnify, pay and hold harmless each Arranger, each the Agent, each Lender the Collateral Agent, the Lenders, the Participants and each Issuer the Loan Administrator and each of their respective Affiliates, and each of the officers, directors, officers, employees, agents, representative, attorneys, consultants agents and advisors of or to any of (collectively called 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 “IndemniteeIndemnitees”) from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements and expenses of any kind or nature whatsoever (including without limitation the reasonable fees and disbursements of counsel to any for such Indemnitee) which may be imposed onIndemnitees, 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 theretobut excluding Taxes), whether direct, indirect, indirect or consequential and whether based on any federal, state or local law foreign laws, statutes, rules or other statutory regulationregulations (including without limitation securities and commercial laws, securities statutes and rules or commercial law or regulationregulations), or under on common law or in equityequitable cause or on contract or otherwise, that may be imposed on, incurred by, or on contract, tort or otherwiseasserted against any such Indemnitee, in any manner relating to or arising out of this Agreement, any the other Loan DocumentDocuments or the transactions contemplated hereby or thereby (including, any Secured Obligationwithout limitation, 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 Loan) or any statement made by or on behalf of any Obligor to the Lenders or any breach or default by any Obligor of any provision of the Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby Loan Documents (collectively, collectively called the “Indemnified MattersLiabilities”); provided, however, that neither Group nor the Borrower no Obligor shall not have any obligation under this Section 11.4 (i) to an any Indemnitee hereunder with respect to any Indemnified Matter caused by or resulting Liabilities to the extent such Indemnified Liabilities arise (i) from the gross negligence or willful misconduct of that Indemnitee, Indemnitee (as actually and finally determined by a final, non-appealable judgment of a court of competent jurisdiction in a final non-appealable judgment jurisdiction) and only to the extent such Indemnified Liabilities constitute direct (as opposed to special, indirect, consequential or order, punitive) damages or (ii) with respect 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 taxes (defend, indemnify, pay and amounts relating thereto)hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the indemnification for which Obligors shall be governed solely contribute the maximum portion that they are permitted to pay and exclusively satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Section 2.16the Indemnitees or any of them. No Indemnitee shall have any liability (whether direct or indirect, and (iiiin contract, tort or otherwise) 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 Obligor or any contiguous real estate; (ii) any costs of their security holders or liabilities incurred in connection with any Remedial Action concerning any Warnaco Entity; (iii) any costs creditors for or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter 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 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated hereby, except to the extent such liability is determined by a final, non-appealable judgment of 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). The agreements in this Agreement.
(c) Group Section 9.4 shall survive the termination of the other provisions of this Agreement and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment Documents and, in full the case of the Secured Obligations and (ii) inure to Facility Agents, shall survive the benefit of any Person who was at any time an Indemnitee under this Agreement resignation or any other Loan Documentremoval thereof.
Appears in 1 contract
Sources: Loan Agreement
Indemnities. (a) 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 AffiliatesLessee will pay, and each of the directorshereby indemnifies, officerson an after-tax basis, employeesLessor and its assignees, agentsif any, representativefrom and against, attorneysany and all fees and taxes, consultants and advisors of levies, imposts, duties, charges or to withholdings, together with any penalties, fines or interest thereon (any of the foregoing (including those retained 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 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 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; (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 satisfaction or attempted satisfaction Aircraft Chattel Mortgage; provided, however, that, there shall 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 conditions 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 extent that validity thereof shall be contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and Lessee shall have set forth aside on its books adequate reserves with respect thereto in Article IIIaccordance with generally accepted accounting principles.
(b) Lessee agrees to defend, indemnify, pay and hold harmless Lessor, Agent and each Lender, and the officers, directors, employees, agents and affiliates of Lessor, Agent and each Lender, (each such Person being an “Indemnitee”collectively called the "Indemnitees") from and against any and all claims, damages, liabilitiesli- abilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements and expenses of any kind or nature whatsoever (including without limitation the reasonable fees and disbursements of counsel to any for such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee Indemnitees in connection with any investigative, administrative or arising out of judicial proceeding, commenced or threatened by any investigation, litigation or proceedingPerson, whether or not any such Indemnitee is shall be designated as a party or a potential party thereto), whether direct, indirect, indirect or consequential and whether based on any federal, state or local law foreign laws, statutes, rules or other statutory regulationregulations (including without limitation securities and commercial laws, securities statutes, rules or commercial law or regulationregulations and Environmental Laws), or under on common law or in equityequitable cause or on contract or otherwise, that may be imposed on, incurred by, or on contract, tort or otherwiseasserted against any such Indemnitee, in any manner relating to or arising out of this Agreement, any Lease or the other Loan Document, any Secured Obligation, any Letter of Credit Transaction Documents or any act, event the transactions contemplated hereby or transaction related or attendant thereby (including without limitation Lenders' agreement to any thereof, make the Loans to Lessor 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 Loans) (collectively, collectively called the “"Indemnified Matters”Liabilities"); provided, however, provided that neither Group nor the Borrower Lessee shall not have any obligation under this Section 11.4 (i) to an any Indemnitee hereunder with respect to any Indemnified Matter caused by or resulting Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of that Indemnitee, Indemnitee as determined by a final judgment of a court of competent jurisdiction jurisdiction. To the extent that the undertaking to defend, indemnify, pay and hold harmless set forth in a final non-appealable judgment or order, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which shall preceding sentence may 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 unenforceable because it is violative of any Warnaco Entity law or affiliate thereof public policy, Lessee shall contribute the maximum portion that it is permitted to pay and is brought satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred 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 Indemnitees or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lenderthem.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Lease Agreement (Atlas Air Inc)
Indemnities. (a) Group and the Borrower agree, jointly and severallyseverally agree to indemnify, to indemnify and hold harmless each Arranger, each and defend Administrative Agent, each Lender and each Issuer Lender, 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this (i) any Loan Document, the Purchase Agreement, any other Loan DocumentObligation (or the repayment thereof), 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 Loan 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 or on behalf of the Loans any Credit Party or Letters any Affiliate of Credit or any of them in connection with any investigation of the foregoing and any potential matter covered hereby 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 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 neither Group nor the Borrower (x) Borrowers shall not have any obligation liability under this Section 11.4 (i) 13.4 to an any Indemnitee with respect to any Indemnified Matter caused by or resulting if, and (y) no Indemnitee shall have any liability with respect to any Indemnified Matter (as to which such Indemnitee would otherwise be liable), other than to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, (ii) with respect each Borrower and each other Credit Party executing this Agreement waives and agrees not to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16assert against any Indemnitee, and (iii) shall cause each other Credit Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, “Indemnified Matters include (i) Matters” includes all Environmental Liabilities and Costs Liabilities, including those arising from from, or connected with the pastotherwise involving, present or future operations any property of any Warnaco Entity involving Related Person or any property subject to a Collateral Documentactual, alleged or prospective damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real estate; (ii) property of any costs Related Person, whether or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whethernot, with respect to any of such mattersEnvironmental Liabilities, such any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in successor-in-interest to any Warnaco Entity, Related Person or the owner, lessee or operator of any property of any Warnaco Entity by virtue of foreclosureRelated Person through any foreclosure action, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, each case except to the extent such Environmental Liabilities (i) are incurred solely following (A) foreclosure by any Facility Agent, Secured Party or following any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer Secured Party having become the successor in successor-in-interest to any Warnaco Entity, Credit Party and (Bii) are attributable solely to acts of the Arrangers, the Facility Agents, such Lender or such Issuer or any agent on behalf of the Facility Agents or such LenderIndemnitee.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) 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 AffiliatesThe Lessee will pay, and each of hereby indemnifies, on an after-tax basis, the directorsLessor and its assignees, officersif any, employeesfrom and against, agentsany and all fees and taxes, representativelevies, attorneysimposts, consultants and advisors of duties, charges or to withholdings, together with any penalties, fines or interest thereon (any of the foregoing (including those retained for the purposes of this Section 12 being called a "Tax"), that may from time to time be imposed on or asserted against the Lessor and its assignees, if any, or any 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 with, relating to or resulting from: (i) any Engine or any part thereof or interest therein, (ii) the satisfaction manufacture, purchase, ownership, mortgaging, lease, sublease, use, storage, maintenance, sale or attempted satisfaction other disposition of any 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 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 conditions Aircraft Chattel Mortgage or the perfection of the lien thereof or unless proceedings shall have been commenced to foreclose any lien that 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 the Lessee shall have set forth aside on its books adequate reserves with respect thereto in Article IIIaccordance with generally accepted accounting principles.
(b) The Lessee agrees to defend, indemnify, pay and hold harmless the Lessor, the Agent and each Lender, and the officers, directors, partners, employees, agents and affiliates of the Lessor, the Agent and each Lender, (each such Person being an “Indemnitee”collectively called the "Indemnitees") from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements and expenses of any kind or nature whatsoever (including including, without limitation, the reasonable fees and disbursements of counsel to any for such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee Indemnitees in connection with any investigative, administrative or arising out of judicial proceeding, commenced or threatened by any investigation, litigation or proceedingPerson, whether or not any such Indemnitee is shall be designated as a party or a potential party thereto), whether direct, indirect, indirect or consequential and whether based on any federal, state or local law foreign laws, statutes, rules or other statutory regulationregulations (including, without limitation, securities and commercial laws, statutes, rules or commercial law or regulationregulations and Environmental Laws), or under on common law or in equityequitable or other cause or on contract or otherwise, that may be imposed on, incurred by, or on contract, tort or otherwiseasserted against any such Indemnitee, in any manner relating to or arising out of this AgreementLease or the other Transaction Documents or the transactions contemplated hereby or thereby (including, any other Loan Documentwithout limitation, any Secured Obligation, any Letter of Credit or any act, event or transaction related or attendant the Lenders' agreement to any thereof, make the Loans to the Lessor 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 Loans) (collectively, collectively called the “"Indemnified Matters”Liabilities"); provided, however, that neither Group nor the Borrower Lessee shall not have any obligation under this Section 11.4 (i) to an any Indemnitee hereunder with respect to any Indemnified Matter caused by or resulting Liabilities to the extent that such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of that Indemnitee, Indemnitee as determined by a final judgment of a court of competent jurisdiction jurisdiction. To the extent that the undertaking to defend, indemnify, pay and hold harmless set forth in a final non-appealable judgment the preceding sentence may be unenforceable because it is violative of any law or order, (ii) with respect to taxes (and amounts relating thereto)public policy, the indemnification for which Lessee shall be governed solely contribute the maximum portion that it is permitted to pay and exclusively satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred 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 Indemnitees or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lenderthem.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Lease Agreement (Atlas Air Inc)
Indemnities. All terms used with an initial capital letter in this Section 12 and not defined in this Section 12 have the same meanings as in the Sale Agreement.
(a) Group and Except for matters subject to the Borrower agreedisclaimers in Section 9.12 of the Sale Agreement, and, subject to the cap in the Sale Agreement on aggregate liability for all damages under the Sale Agreement, inclusive of any claims hereunder, Transferors shall jointly and severallyseverally indemnify, to indemnify defend, and hold harmless each ArrangerTransferees and their partners, each Agent, each Lender and each Issuer and each of their respective Affiliatesshareholders, and each of members and the directors, officers, employees, agents, representative, attorneys, consultants and advisors of or to any of Partnership (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”"Transferee Indemnitees") from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages, and losses, including without limitation reasonable legal fees, court costs, and expenses (collectively "Claims") asserted against, incurred, or suffered by any Transferee Indemnitee resulting from or arising out of the following matters of which Transferees shall provide written notice to Transferors within a period of nine (9) months after the Closing Date (time being of the essence),:
(i) any personal injury or property damage (other than casualty loss covered in Section 8.2 or 8.3 of the Sale Agreement) which occurred in, on, or under the Project prior to the date of this Assignment from any cause whatsoever other than as a consequence of the negligent acts or omissions of any Transferee or Purchaser or their respective agents, employees, or contractors;
(ii) any claim, demand, lawsuit, arbitration, or other legal proceeding initiated by or on behalf of one or more of the shareholders of, or partners or members in, Transferors relating to the execution of this Assignment and the transfer of the Transferred Interests to Transferees under this Assignment; and
(iii) except to the extent already prorated between the parties under the Sale Agreement, any and all liabilities, obligations, lossesdebts, penaltiescontracts, actions, judgments, suits, costs, disbursements and expenses other commitments of any kind or nature (including reasonable fees and disbursements whatsoever, whether accrued, fixed, absolute, conditional, determined, or determinable of counsel to any such Indemnitee) which may be imposed onthe Partnership, incurred by or asserted against any such Indemnitee in connection with existing as of the Closing Date or arising out of or resulting from any investigationtransaction of the Partnership entered into prior to the Closing Date, litigation except for liabilities and obligations arising on or proceedingafter the Closing Date under or related to the Service Contracts, whether or not the Leases (identified on the most recent Rent Roll delivered by Transferors and 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 Leases entered into after the date of the Rent Roll in equity, or on contract, tort or otherwise, in any manner relating to or arising out the ordinary course 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 thereofbusiness), 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”)Permitted Exceptions; provided, however, that neither Group nor nothing herein affects Transferors' obligations or Transferees' rights under the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct Sale Agreement for a breach of that IndemniteeSellers' representations and warranties, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which but Transferees 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 precluded from recovering more than the actual amount of any Warnaco Entity Claims for the same errors, acts or affiliate thereof omissions if recovery is sought under both the Sale Agreement 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 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 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 the Facility Agents or such Lenderthis indemnity.
(b) Group and the Borrower shall, Transferees shall jointly and severallyseverally indemnify, indemnify each Agent, each Arranger, each Lender and each Issuer fordefend, and hold each Agentharmless Transferors and their partners, each Arrangershareholders, each Lender and each Issuer harmless members (the "Transferor Indemnitees") from and against, against any and all claims for brokerage commissionsClaims asserted against, fees and other compensation made against incurred, or suffered by any Agent, Arranger, Lender Transferor Indemnitee resulting from or any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.arising out of:
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full any personal injury or property damage which occurs in, on, or under the Project on or after the Closing Date from any cause whatsoever other than as a consequence of the Secured Obligations and negligent acts or omissions of Transferors, or their agents, employees, contractors, subcontractors, or JPI Apartment Construction, L.P. first occurring on or after the Closing Date.; and
(ii) inure any and all liabilities, obligations, debts, contracts, and other commitments of any kind or nature whatsoever, whether accrued, fixed, absolute, conditional, determined, or determinable of the Partnership arising out of or resulting from any transaction of the Partnership entered into from or after the Closing Date and any Partnership liabilities and obligations arising from or after the Closing Date under or related to the benefit Service Contracts, the Leases (identified on the most recent Rent Roll delivered by Transferors and any Leases entered into after the date of any Person who was at any time an Indemnitee under this Agreement the Rent Roll in the ordinary course of business), or any other Loan Documentthe Permitted Exceptions.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agreeThe Company agrees to indemnify, jointly and severally, to indemnify and hold harmless each Arranger, each and defend the Subordinated Notes Agent, each Lender and each Issuer Noteholder, 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreementany action, investigation, proceeding or other claim arising from or related to (i) any other Loan Subordinated Notes Document, any Secured ObligationObligation (or the repayment thereof), 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 Subordinated Note, any Related Transaction, or Letters of Credit any securities filing of, or with respect to, any Group Member, (ii) Contractual Obligation entered into in connection with any investigation 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 potential matter covered hereby 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 neither Group nor the Borrower Company shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, (ii) with respect each of Holdings and the Company waives and agrees not to taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16assert against any Indemnitee, and (iii) shall cause each other Credit Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities 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 may be imposed on, upon incurred by or into such property or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 asserted 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 Warnaco Entity in connection with the transactions contemplated by this AgreementRelated Person.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Subordinated Notes Agreement (Townsquare Media, Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, Lender hereby agrees to indemnify and hold harmless each ArrangerBorrower and its affiliates and its former, each Agent, each Lender present and each Issuer and each of their respective Affiliates, and each of the future directors, officers, employees, agents, representative, attorneys, consultants employees 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”) other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, liabilitiesfees, obligationsliens, lossestaxes, penalties, actions, judgments, suits, costs, disbursements obligations and expenses (and losses relating to Borrower's market activities as a consequence of becoming, or of the risk of becoming, subject to Section 16(b) under the Exchange Act, including without limitation, any kind forbearance from market activities or nature (including reasonable fees cessation of market activities and disbursements of counsel any losses in connection therewith or with respect to this Agreement) incurred or suffered by any such Indemnitee) which may be imposed onperson or entity directly or indirectly arising from, incurred by reason of, or asserted against any such Indemnitee in connection with or arising out of with, (i) 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 breach by Lender of any of the Loans its representations or Letters of Credit warranties contained in Section 7 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect to breach by Lender of any of such matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee its covenants or agreements 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 the Facility Agents or such Lenderthis Agreement.
(b) Group Borrower hereby agrees to indemnify and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each hold harmless Lender and each Issuer forits affiliates and its former, present and hold each Agentfuture directors, each Arrangerofficers, each Lender employees and each Issuer harmless other agents and representatives from and against, against any and all claims for brokerage commissionsliabilities, fees judgments, claims, settlements, losses, damages, fees, liens, taxes, penalties, obligations and other compensation made against expenses incurred or suffered by any Agentsuch person or entity directly or indirectly arising from, Arrangerby reason of, 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 Warnaco Entity in connection with the transactions contemplated (i) any breach by Borrower of any of its representations or warranties contained in Section 7 or (ii) any breach by Borrower of any of its covenants or agreements in this Agreement.
(c) Group 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 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 Borrower agreefailure 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 participate in the defense of any claim and, to the extent that it shall wish, jointly and severallywith any other Indemnifying Party similarly notified, that to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party (who shall not, except with the consent of the 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 indemnification or legal expenses of other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) counsel or any other Loan Document shall 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 such action or claim) unless such settlement, compromise or judgment (i) survive payment in full includes an unconditional release of the Secured Obligations Indemnified Party from all liability arising out of such action or claim and (ii) inure does not include a statement as to the benefit or an admission of fault, culpability or a failure to act, by or on behalf of any Person who was at Indemnified Party. An Indemnified Party shall not make any time an Indemnitee settlement of any claim or litigation under this Agreement or any other Loan DocumentSection 12 without the written consent of the Indemnifying Party.
Appears in 1 contract
Indemnities. (a) Group and the The Borrower agree, jointly and severally, to shall indemnify and hold harmless each Arranger, each Agentthe Agents, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representative, attorneys, consultants controlling persons or advisors and advisors other representatives and the successors and permitted assigns of or to any each of the foregoing (including those retained in connection with collectively the satisfaction or attempted satisfaction of any of the conditions set forth in Article III) (each such Person being an “IndemniteeIndemnitees”) from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements and expenses (including Attorney Costs) of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) whatsoever which may at any time 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 way relating to or arising out of this Agreementor 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 counsel to the Administrative Agent and, if necessary, one local counsel for all Indemnitees taken as a whole in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions), and solely in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower and thereafter retains its own counsel, one additional firm of counsel in each appropriate 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 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 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 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 Loans foregoing, whether based on contract, tort or Letters of Credit or in connection with any other theory (including any investigation of, preparation for, or defense of any potential matter covered hereby pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified MattersLiabilities”); providedprovided that such indemnity shall not, however, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect as to any Indemnified Matter caused by Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or resulting disbursements resulted from (A) the gross negligence or willful misconduct of that Indemniteesuch Indemnitee or of any Related Indemnified Person, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction in a final non-appealable judgment or order, (iiB) with respect to taxes (and amounts relating thereto), the indemnification for which shall be governed any dispute solely and exclusively by Section 2.16, and (iii) to among Indemnitees other than any claims against an Indemnitee with respect to in its capacity or in fulfilling its role as an administrative agent or arranger or any Indemnified Matter that does not involve an similar role under the Facility (excluding their role as a Lender) and other than any claims arising out of any act or omission of the Borrower or any Warnaco Entity of its 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 affiliate thereof 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 is brought satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by one the Indemnitees or any of them. No Indemnitee against another Indemnitee. Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs shall be liable for any damages arising from or connected with the past, present or future operations use by others of any Warnaco Entity involving any property subject to a Collateral Document, information or damage to real other materials obtained through IntraLinks 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 other similar information transmission systems in connection with this Agreement, nor shall 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 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 Loan Party have 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 the Facility Agents or such Lender.
(b) 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 liability for any brokerspecial, finder punitive, indirect or consultant with respect consequential damages relating to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (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 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. The agreements in this Section 12.4 shall survive the resignation of the Administrative Agent, the Collateral Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. This Section 12.4 shall not apply to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.
Appears in 1 contract
Sources: Credit Agreement (eHealth, Inc.)
Indemnities. (a) Group and Subject to the provisions of Section 9.5, whether or not the transactions contemplated hereby shall be consummated, the Borrower agreeagrees to indemnify, jointly and severally, to indemnify pay and hold harmless each Arranger, each Agent, each Lender the Agent and each Issuer Lender, the shareholders, officers, directors, employees and agents of the Agent and each of their respective AffiliatesLender, and each of the directors, officers, employees, agents, representative, attorneys, consultants and advisors of or to other Person controlling any of the foregoing (including those retained in connection with within the satisfaction or attempted satisfaction meaning of any either Section 15 of the conditions set forth in Article III) Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (each such Person being each, an “Indemnitee”) "Indemnified Person"), harmless from and against any and all claims, damages, liabilities, obligations, losses, penaltiesdamages, actionscosts and expenses, judgments, suits, costs, disbursements including reasonable attorneys' fees and expenses of any kind or nature costs (including the reasonable fees and disbursements out-of-pocket expenses of counsel to any such Indemniteecounsel) which may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out and including costs of any investigation, litigation or proceedingdocument production, whether or not any such Indemnitee is attendance at a party thereto, whether direct, indirect, or consequential and whether based on any federal, state or local law deposition or other statutory regulationdiscovery, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating related 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
, any of the Related Transactions or any contemplated use of the proceeds of the Loans, whether or not any Indemnified Person is a party thereto (c) Group collectively, the "Indemnified Liabilities"), except to the extent that such Indemnified Liabilities result from the gross negligence or willful misconduct of the Agent, or any Lender or any other Indemnified Person. If any claim is made, or any action, suit or proceeding is brought, against any Indemnified Person pursuant to this Section, the Indemnified Person shall notify the Borrower of such claim or of the commencement of such action, suit or proceeding, and the Borrower agreeshall have the option to, jointly and severallyat the request of the Indemnified Person shall, direct and control the defense of such action, suit or proceeding, employing counsel selected by the Borrower and reasonably satisfactory to the Indemnified Person, and pay the fees and expenses of such counsel; provided, however, that any indemnification or other protection provided Indemnified Person may at its own expense retain separate counsel to any Indemnitee pursuant participate in such defense. Notwithstanding the foregoing, such Indemnified Person shall have the right to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.employ separate
Appears in 1 contract
Sources: Credit Agreement (Phase Metrics Inc)
Indemnities. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering pursuant to this Exhibit:
6.1 ECI will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender the Exercising Shareholder and each Issuer and each of their respective Affiliatesany underwriter for the Exercising Shareholder, and each of person, if any, who controls the directorsExercising Shareholder, 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 claimslosses, damages, claims, liabilities, obligationsjoint or several, losses, penalties, actions, judgments, suits, costs, disbursements costs and expenses of any kind or nature (including reasonable fees and disbursements of counsel any amounts paid in any settlement effected with ECI’s consent) to which the Exercising Shareholder or any such Indemnitee) which underwriter or controlling person 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 become subject under applicable law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in any manner relating to respect thereof), costs or arising expenses arise out of this Agreementor 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, any other Loan Document, any Secured Obligation, any Letter of Credit as amended or any act, event or transaction related or attendant to any thereofsupplemented, or (ii) the use omission or intended use 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 proceeds of any of the Loans or Letters of Credit or circumstances in connection with any investigation of any potential matter covered hereby (collectivelywhich they are made, the “Indemnified Matters”)not misleading; provided, however, that neither Group nor the Borrower shall ECI will not have be liable in any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 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 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, case to the extent incurred following (A) foreclosure 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 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 AgentsExercising Shareholder, such Lender underwriter or such Issuer or any agent on behalf of controlling persons in writing specifically for inclusion therein; provided, further, that the Facility Agents or such Lender.
(b) 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 indemnity agreement contained in this subsection shall not apply to any agreement, arrangement or understanding made by or on behalf amounts paid in settlement of any Warnaco Entity in connection with such claim, loss, damage, liability or action if such settlement is effected without the transactions contemplated by this Agreementconsent of ECI, which consent shall not be unreasonably withheld.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Agreement (Idb Holding Corp LTD)
Indemnities. (a) Group and In the Borrower agree, jointly and severally, event of any registered offering of Registrable Securities pursuant to this Section 2:
2.7.1 The Company will indemnify and hold harmless each Arrangerharmless, each Agentto the fullest extent permitted by law, each Lender any Holder, whose Registrable Securities are included in the registration, and any underwriter for such Holder, partner, officer or director, shareholder, legal consultant or accountants and each Issuer person, if any, who controls the Holder or such underwriter (in this Sections 2.7.1 and each of their respective Affiliates, and each of 2.7.2 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 claimslosses, damages, claims, liabilities, obligationsjoint 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, penaltiesdamages, actionsclaims, judgmentsliabilities (or actions or proceedings in respect thereof), suits, costs, disbursements and costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any kind material fact contained in the registration statement or nature included in the prospectus, as amended or supplemented, or (including reasonable fees and disbursements ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of counsel to the Securities Act, the 1934 Act (as defined below), any such Indemnitee) which may be imposed onfederal or state securities law or any rule or regulation promulgated under the Securities Act, incurred by the 1934 Act or asserted against any such Indemnitee federal or state securities law or the equivalent securities exchange law of another jurisdiction, in connection with the offering covered by such registration statement.
2.7.2 The Company will reimburse the Indemnitee promptly upon written demand, for any reasonable legal 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 expenses incurred by them in connection with any investigation of any potential matter covered hereby (collectivelyinvestigating, the “Indemnified Matters”)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 neither Group nor the Borrower shall Company will not have any obligation under this Section 11.4 (i) to an Indemnitee with respect be liable to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction underwriter or controlling person in a final non-appealable judgment or order, (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 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 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, case to the extent incurred following (A) foreclosure 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 Indemnitee claiming for indemnification in writing specifically for inclusion therein; provided, further, that this indemnity shall not be deemed to relieve any Facility Agentunderwriter of any of its due diligence obligations; provided, further, that the indemnity agreement contained in this subsection 2.7 shall not apply to amounts paid in settlement of any Lender such claim, loss, damage, liability or any Issuer, or any Facility Agent, any Lender or any Issuer having become action if such settlement is effected without the successor in interest to any Warnaco Entity, and (B) attributable solely to acts written consent of the ArrangersCompany, the Facility Agents, such Lender or such Issuer or which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any agent on behalf of the Facility Agents or such Lender.
(b) 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 investigation made by or on behalf of the Indemnitee, and regardless of any Warnaco Entity sale in connection with such offering by a selling shareholder. Such indemnity shall survive the transactions contemplated transfer of securities by a selling shareholder made in conformity with the provisions of this Agreement.
(c) Group 2.7.3 Each Holder participating in a registration hereunder will furnish to the Company in writing any information regarding such Holder and his or her intended method of distribution of Registrable Securities as the Borrower agreeCompany may reasonably request and will indemnify and hold harmless the Company, jointly any underwriter for the Company, any other person participating in the distribution and severallyeach person, that if any, who controls the Company, such underwriter, or such other person from and against any indemnification and all losses, damages, claims, liabilities, costs or other protection provided to any Indemnitee pursuant to this Agreement expenses (including pursuant any amounts paid in any settlement effected with the selling shareholder’s consent) to this Section 11.4) which the Company or any other Loan Document shall 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) survive payment any untrue or alleged untrue statement of any material fact contained in full of the Secured Obligations and 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, 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 the Company, 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 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 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 Person who 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 subsection 2.7.2 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 net proceeds from the offering received by such ▇▇▇▇▇▇.
2.7.4 Promptly after receipt by an indemnified party pursuant to the provisions of Sections 2.7 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 2.7, 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 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 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 2.7.1 or 2.7.2 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 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 Indemnitee 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.
2.7.5 If recovery is not available under this Agreement the foregoing indemnification provisions, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. 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 the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. In no event shall the liability of a Holder exceed the net proceeds from the offering received by such ▇▇▇▇▇▇.
2.7.6 Notwithstanding the foregoing, to the extent that the provisions on indemnification contained in the underwriting agreements entered into among the selling Shareholders, the Company and the underwriters in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall be controlling as to the Registrable Securities or any other Loan Documentsecurities requested to be registered by any selling Shareholder in the public offering.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agreeshall protect, jointly and severallydefend, to indemnify and hold save harmless each Arranger, each Agent, each Lender Administrative Agent and each Issuer and each of Lender, their respective Affiliatesshareholders, and each of the directors, officers, employeesemployees and agents (each, 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 “IndemniteeIndemnified Person”) from and against any and all claimsLiabilities, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind imposed upon or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) which may be imposed on, incurred by or asserted against any Indemnified Person, whether brought by a third party or any Borrower Party, by reason of (i) credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such Indemnitee credit, and in connection with or arising out of the transactions contemplated hereunder and thereunder and any actions or failures to act in connection therewith; (ii) ownership of the Mortgage, the Project or any interest therein or receipt of any rents and the exercise of rights and remedies thereunder; (iii) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Project or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (iv) any use, nonuse or condition in, on or about the Project or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (v) performance of any labor or services or the furnishing of any materials or other property in respect of the Project or any part thereof; (vi) the failure of any Person to file LOAN AGREEMENT – Page 85[Summit P▇▇▇▇▇▇▇▇▇] timely with the Internal Revenue Service an accurate Form 1▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be required in connection with this Agreement, or to supply a copy thereof in a timely fashion to the recipient of the proceeds of the transaction in connection with which this Agreement is made; (vii) any securities filing of, or with respect to, Borrower, any other Borrower Party or the Project; (viii) any commitment letter, proposal letter or term sheet with any Person and any contractual obligation entered into in connection with any E-Systems or other Electronic Transmissions; (ix) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnified Person or any of its Related Persons, any holders of securities or creditors, whether or not any such Indemnitee Indemnified Person, Related Person, holder or creditor is a party thereto, whether direct, indirect, or consequential and whether or not based on any federal, state or local law or other statutory regulation, securities or commercial law or regulationregulation or any other Requirements of Law or theory thereof, or under including common law or in law, equity, or on contract, tort or otherwise; (x) all sums paid by Administrative Agent pursuant to Section 9.3, in any manner relating to or arising out of this Agreement, (xi) any other Loan Document, any Secured Obligation, any Letter of Credit or any act, event or transaction related related, contemplated in 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 foregoing (individually and collectively, the “Indemnified MattersMatter”); provided, however, that neither Group nor the Borrower shall not have any obligation no liability under this Section 11.4 (i) 11.5 to an Indemnitee any Indemnified Person with respect to any Indemnified Matter, and no Indemnified Person shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability has resulted from the gross negligence or willful misconduct of that Indemniteesuch Indemnified Person, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, Borrower (iion its own behalf and on behalf of each other Borrower Party) with respect waives and agrees not 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 assert against any Indemnified Person any right of contribution with respect to any Indemnified Matter Liabilities 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 may be imposed on, upon incurred by or into such property or asserted against any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such LenderRelated Person.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any Any indemnification or other protection provided to any Indemnitee Indemnified Person pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document and the Environmental Indemnity Agreement and all representations and warranties made in any Loan Document and the Environmental Indemnity Agreement shall (i) survive the termination of the Loan Commitment and the payment in full of the Secured other Obligations and (ii) inure to the benefit of any Person who was that at any time held a right thereunder (as an Indemnitee under this Agreement Indemnified Person or otherwise) and, thereafter, its successors and permitted assigns.
(c) In no event shall any Indemnified Person be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings). Borrower (on its own behalf and on behalf of the other Loan DocumentBorrower Parties) hereby waives, releases and agrees not to s▇▇ upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Borrowers agree to indemnify and hold harmless each Arrangerthe Administrative Agent, each the Syndication Agent, the Documentation 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 AgreementAgreement (including any Existing Loan Document or any Agreement amended by any Existing Loan Document), any other Loan Document, any Secured Obligation, any Letter of Credit 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 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 Borrowers shall not have any obligation under this Section 11.4 (i) 9.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or negligence, willful misconduct or breach of its obligations under any Loan Document of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (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 the Company or any Warnaco Entity 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 the Company or any Warnaco Entityof 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 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 Company or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Company or any Warnaco Entity 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 any Facility Agent, the Administrative Agent any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Company or any Warnaco Entityof its Subsidiaries, and (B) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, or such Lender.
(b) Group and The Borrowers shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.. 102 109
(c) Group The Administrative Agent, Lender and each Issuer agree that in the event that any such investigation, litigation or proceeding set forth in subparagraph (b) above is asserted or threatened in writing or instituted against it or any other Indemnitee, or any Remedial Action, is requested of it or any of its officers, directors, Administrative Agents and employees, for which any Indemnitee may desire indemnity or defense hereunder, such Indemnitee shall promptly notify the Borrowers in writing.
(d) The Borrowers, at the request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Borrower agreeBorrowers, jointly in any event, may participate in the defense thereof with legal counsel of the Borrowers' choice. In the event that such Indemnitee requests the Borrowers to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrowers shall promptly do so and severallysuch 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 or requested Remedial Action, shall vitiate or in any way impair the Borrowers' obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(e) Each Borrowers agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.49.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Arranger, each the Agent, each Lender and each Issuer Lender, the Permitted Participant and each of their respective AffiliatesAffiliates and the Government Guarantor, 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, the Intercreditor Agreement, any Secured Obligation, any Letter of Credit the U.S. Government Guarantee and the application therefor, the Disclosure 70 72 Statement or any act, event or transaction related or attendant to any thereofthereof (including the participation agreement referred to in Section 3.1, or the use or intended use of the proceeds of any of the Term 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 not have any obligation under this Section 11.4 (i) 10.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 the Borrower or any Warnaco Entity 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 the Borrower or any Warnaco Entityof 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 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 Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 any Facility the Agent, any Lender or any IssuerLender, or any Facility Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, and (B) attributable solely to acts of the Arrangers, the Facility AgentsAgent, such Lender or such Issuer or any agent on behalf of the Facility Agents Agent or such Lender.
(b) Group The Borrower shall indemnify the Agent and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each Lender and each Issuer forLenders, and hold each Agent, each Arranger, each Lender the Agents and each Issuer the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, Arranger, Lender or any Issuer the Agent and the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, at the 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.410.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agree, 7.1 The Warrantors hereof jointly and severallyseverally undertake to fully indemnify the Subscribers, to indemnify and hold harmless each Arrangerits associates, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agentslimited partners, representativemembers, attorneysstockholders, consultants and advisors of or to any of the foregoing attorneys (including including, without limitation, those retained in connection with the satisfaction transactions contemplated herein), agents and representatives (each an “Indemnitee” and collectively, the “Indemnitees”), and to keep such Indemnitee harmless from and against all direct losses, liabilities, costs and damages (including without limitation legal costs) (the “Indemnifiable Losses”) which may be suffered or attempted satisfaction incurred by any of them in connection with, arising out of or as a result of any of the conditions set forth in Article IIIfollowing:
(a) (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 Warranties (including but not limited to warranties regarding tax and incorporation matters) not being true, correct or Letters of Credit accurate in all respects or in connection not being fully complied with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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) at 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 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 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 the Facility Agents or such Lender.times;
(b) any breach or violation of any covenant or agreement contained herein or any of the Transaction Documents;
(c) any claim by the Group Companies and their associates against the Borrower Subscribers, provided that such Subscribers and/or its associates is not liable, or against any Group Company; and
(d) any of the Covenants in Clause 6 and any other undertakings or obligations in this Agreement not being fully performed or fully complied with at all times.
7.2 Notwithstanding the foregoing, the Warrantor shall, jointly and severally, indemnify each Agent, each Arranger, each Lender and each Issuer for, keep indemnified the Indemnitees at all times and hold each Agent, each Arranger, each Lender and each Issuer them harmless from and against, against any and all claims Indemnifiable Losses resulting from, or arising out of, or due to, directly or indirectly, (x) any claim for brokerage commissionstax which has been made or may hereafter be made against the Domestic Company and any other Group Company wholly or partly in respect of or in consequence of any event occurring or any income, profits or gains earned, accrued or received by the Domestic Company and any Group Company on or before the Completion, (y) all liability for any taxes of any other person imposed by any governmental authority on any Group Company as a transferee, successor, withholding agent, or accomplice in connection with an event or transaction occurring before the Completion, and (z) all liability for taxes attributable to any misrepresentation or breach of warranty made in Clause 18 of Schedule 4 of this Agreement, and any reasonable costs, fees or expenses incurred and other compensation liabilities which the Domestic Company and any Group Company may properly incur in connection with the investigation, assessment or the contesting of any claim, the settlement of any claim for tax, any legal proceedings in which the Domestic Company claims in respect of the claim for tax and in which an arbitration award or judgment is given for the Domestic Company or other Group Company and the enforcement of any such arbitration award or judgment, whether or not such tax is chargeable against or attributable to any other person (“Tax Indemnifiable Loss”), provided, however, that the Warrantors shall be under no liability for any tax matters, if any:
(a) to the extent that such Tax Indemnifiable Loss is promptly cured within thirty (30) days after the occurrence of such Tax Indemnifiable Loss without recourse to cash or other assets of any Group Company;
(b) to the extent that such Tax Indemnifiable Loss has been clearly disclosed in the Financial Statements (as defined in Schedule 4);
(c) if it has arisen in and relates to the ordinary course of business of a Group Company since the Balance Sheet Date, subject to compliance with applicable law;
(d) to the extent that the liability arises as a result only of a provision or reserve in respect of the liability made in the Financial Statements being insufficient by reason of any increase in rates of tax announced after the Completion with retrospective effect; or
(e) to the extent that the liability arises as a result of legislation which comes into force after the Completion and which is retrospective in effect.
7.3 Notwithstanding anything contained in the Schedule of Exceptions, each of the Group Companies shall jointly and severally indemnify at all times and hold harmless each Indemnitee from and against any AgentIndemnifiable Loss directly or indirectly, Arrangeras a result of, Lender or based upon or arising from (i) the non-payment or underpayment of social insurance or housing fund contributions, (ii) any Issuer dispute or infringement claim in connection with violation of any of the Intellectual Property of any other person or entity before the Completion, or (iii) any action, suit, arbitration or other court proceeding, pending or threatened, due to the non-compliance with any applicable laws or contracts existing prior to the Completion even if the liability is actually incurred after the Completion).
7.4 If any Indemnitee believes that it has a claim that may give rise to an obligation of any Warrantor pursuant to this Clause 7, it shall give prompt notice thereof to the Warrantors stating specifically the basis on which such claim is being made, the material facts related thereto, and the amount of the claim asserted. Any dispute related to this Clause 7 shall be resolved pursuant to Clause 17.
7.5 For the avoidance of doubt, each of the Warrantors hereby agrees and covenants that he /it will do all such things and undertake all such actions, including without limitation, any applications to and registrations with the governmental authorities and any other protective measures reasonably requested by the Subscribers, to ensure that the agreement of the parties with respect to joint and several liability of the Warrantors under the Transaction Documents is given full force and effect.
7.6 Notwithstanding the above provisions, absent of fraud, intentional misconduct on the part of any Warrantor, none of the Warrantors shall have any liability under the warranties and representations to the extent that any individual claim against any of them in respect thereof does not exceed US$10,000 (in respect of the Group Companies) and US$20,000 (in respect of the Founder Parties). For the avoidance of doubt, if the total amount of the Indemnifiable Loss exceeds US$10,000 (in respect of the Group Companies) or US$20,000 (in respect of the Founder Parties), the Warrantors shall be liable for the full amount of Indemnifiable Loss. Notwithstanding any brokerother provision contained herein, finder absent fraud or consultant willful misconduct by any of the Founder Parties, the maximum liability of the Founder Parties shall be limited to one hundred percent (100%) of the shares directly or indirectly held by the Founder Parties in the Company. Absent of fraud, intentional misconduct on the part of any Warrantor, the Indemnitees shall not be entitled to make any claim against the Founder Parties unless written notice thereof has been given to each of the Founder Parties within two (2) years from the date of Completion.
7.7 This Clause 7 shall not be deemed to preclude or otherwise limit in any way the exercise of any other rights or pursuit of equitable remedies (including but not limited to injunctive relief and/or specific performance) for the breach of this Agreement or with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreementmisrepresentation.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee 7.8 The Warrantors’ obligations under this Agreement or any other Loan DocumentClause 7 shall survive the Completion.
Appears in 1 contract
Indemnities. (a) Group and the The Borrower agree, jointly and severally, to shall indemnify and hold harmless each Arrangerthe Agents, each AgentLender, each Lender Issuer, the Arrangers and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativepartners, attorneys, consultants trustees or advisors and advisors of or to any of other representatives (collectively 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 “IndemniteeIndemnitees”) from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements and expenses (including Attorney Costs) of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) whatsoever which may at any time 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 way 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 (but limited, in the case of any potential matter covered hereby (collectivelylegal fees and expenses, to the “Indemnified Matters”); providedreasonable and documented out-of-pocket fees, howeverdisbursements 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 neither Group nor is material to the Borrower shall not have any obligation under this Section 11.4 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) (i) to an Indemnitee with respect to any Indemnified Matter caused by the execution, delivery, enforcement, performance or resulting 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 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 administration 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 Loan Document or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 letter or understanding made by or on behalf of any Warnaco Entity instrument delivered in connection with the transactions contemplated by this Agreement.
thereby or the consummation of the transactions contemplated thereby, (cii) Group and any Revolving Credit Commitment, Loan or Letter of Credit or the Borrower agree, jointly and severally, that any indemnification use or other protection provided to any Indemnitee pursuant to this Agreement proposed use of the proceeds therefrom (including pursuant any refusal by an Issuer to this Section 11.4honor 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 Document shall (i) survive payment in full Party, or any Environmental Liabilities arising out of the Secured Obligations 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 (ii) inure all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the benefit extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Person who was at affiliate, director, officer, employee or agent of such Indemnitee, (y) a material breach of any time obligations under any Loan Document by such Indemnitee or of any Related Indemnified Person, in 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 administrative agent or arranger or any similar role under the Facility and other than any claims arising out of any act or omission of the Borrower or any of its 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 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 DocumentDocument or arising out of its activities in connection herewith or therewith (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 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 twenty (20) Business Days after written demand therefor. The agreements in this Section 12.4 shall survive the resignation of the Administrative Agent, the Collateral Agent, the Swing Loan Lender or any Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. This Section 12.4 shall not apply to Taxes, which shall be governed by Section 3.1. This Section 12.4 also shall not apply to Other Taxes or to Taxes covered by Section 3.4.
Appears in 1 contract
Sources: Credit Agreement (JOANN Inc.)
Indemnities. (a) Group and the Each Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Arrangerthe Administrative Agent, each Agentthe Other Representatives, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativerepresentatives, trustees, 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 condition set forth in Article IIIIII (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 of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 state, provincial 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 Credit, any Disclosure Document, any Related Document, any agreement among Lenders and the Administrative Agent entered into in connection with this Agreement 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 no Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 orderorder or relating to Taxes, (ii) with respect to taxes (fees 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 Indemniteesimilar charges. Without limiting the foregoing, “Indemnified Matters Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of Holdings or any Warnaco Entity 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 CREDIT AGREEMENT JOHNSONDIVERSEY, INC. Action concerning Holdings or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to Holdings or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of Holdings or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to Holdings or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such LenderIssuer after such foreclosure.
(b) Group and Each Borrower shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group and Each Borrower, at the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit request of any Person who was at Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and each Borrower, in any time an event, may participate in the defense thereof with legal counsel of such Borrower’s choice. In the event that such Indemnitee under this Agreement requests any Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, 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 other Loan Documentsuch investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair such Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agree, Borrowers agree to jointly and severallyseverally indemnify, to indemnify and hold harmless each Arranger, each and defend Administrative Agent, each Lender and 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 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) Related Persons (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 Liabilities (including reasonable brokerage commissions, fees and disbursements of counsel to any such Indemniteeother compensation) which 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 matter relating to or arising out of, in connection with or as a result of this Agreement, (i) any other Loan Document, any Secured ObligationRelated Document, any Disclosure Document, any Obligation (or the repayment thereof), any Letter of Credit or any actCredit, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, any transaction contemplated by a Related Document 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 (A) shall be claimed by the Loans Indemnitee under such Related Document to the extent arising thereunder, and (B) shall be claimed without duplication of any indemnity provided under any Related Document, (ii) any commitment letter, proposal letter or Letters 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 of Credit 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 potential matter covered hereby other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower Borrowers shall not have any obligation liability under this Section 11.4 (i) to an any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter caused by or resulting other than (to the extent otherwise liable), to the extent such liability (A) has resulted primarily from the gross negligence or willful misconduct of that such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, or (iiB) with respect 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 taxes (and amounts relating thereto), the indemnification for which shall be governed solely and exclusively by Section 2.16assert against any Indemnitee, and (iii) shall cause each other Loan Party to an Indemnitee waive and not assert against any Indemnitee, any right of contribution with respect to any Indemnified Matter Liabilities that does not involve an act may be imposed on, incurred by or omission of asserted against any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Related Person.
(b) Without limiting the foregoing, “Indemnified Matters include Matters” includes (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[Reserved]; (ii) any costs claims, proceedings or liabilities incurred in connection with causes of action brought by any Remedial Action concerning any Warnaco Entityresident of a Facility; and (iii) any costs loss, Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility) CHICAGO/#3103747.13103747.3A damage, cost or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Lawexpense, including CERCLA and reasonable attorneys’ fees, incurred or suffered by any Indemnitee as a result of any (x) breach by a Borrower of any contract or lease with a resident of a Facility or (y) violation of any applicable state property transfer laws, whether, with respect to any Requirement of such matters, such Indemnitee is Law governing a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to any Warnaco Entity, Facility 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 uses described in clauses (iSection 4.1(b), (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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Genesis Healthcare, Inc.)
Indemnities. (a) Group and the a. Each Borrower agreeagrees, jointly and severally, to indemnify and hold harmless each Agent, each Arranger, each AgentLender, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agentspartners, representativerepresentatives, advisors, attorneys, consultants and advisors agents and each of or to any of the foregoing their respective heirs, successors, and assigns (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions condition set forth in Article IIISection 4 (Conditions Precedent)) (each such Person being an “Indemnitee”) from and against any and all actions, suits, losses, claims, damages, penalties, liabilities, obligationsand expenses, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including reasonable and documented legal fees and disbursements expenses of one firm of counsel to any such for all Indemnitees and, if reasonably necessary or advisable in the judgment of the Administrative Agent, one firm of local or regulatory counsel in each appropriate jurisdiction and one firm of special counsel for each relevant specialty, in each case for all Indemnitees and, solely in the case of an actual or perceived conflict of interest (as reasonably identified by an Indemnitee) where the Indemnitee affected by such conflict informs you of such conflict, one additional firm of counsel in each relevant jurisdiction for the affected Indemnitee similarly situated), joint or several, to which such Indemnitee may become subject or that may be imposed on, incurred by or asserted or awarded against any such Indemnitee (including, without limitation, in connection with or relating to any investigation, litigation, or proceeding or the preparation of a defense in connection therewith), in each case 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, connection with or on contract, tort by reason of (i) the execution or otherwise, in any manner relating to or arising out delivery of this Agreement, any other Loan Document, any Secured Obligation, any Letter of Credit Document or any actagreement or instrument contemplated hereby or thereby, event the performance by the parties hereto of their respective obligations hereunder or transaction related thereunder or attendant to any thereof, the consummation of the transactions contemplated hereby or thereby (including the Transactions) or (ii) the use or intended the contemplated use of the proceeds of this Facility (including any refusal by any 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), and will reimburse each Indemnitee for all reasonable and documented expenses (including reasonable and documented legal fees and expenses of one firm of counsel for all Indemnitees and, if reasonably necessary or advisable in the judgment of the Loans Administrative Agent, one firm of local or Letters regulatory counsel in each appropriate jurisdiction and one firm of Credit special counsel for each relevant specialty, in each case for all Indemnitees and, solely in the case of an actual or perceived conflict of interest (as reasonably identified by an Indemnitee) where the Indemnitee affected by such conflict informs you of such conflict, one additional firm of counsel in each relevant jurisdiction for the affected Indemnitee similarly situated) on demand as they are incurred in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”)foregoing; provided, however, provided that neither Group nor the Borrower shall not no Indemnitee will have any obligation under this Section 11.4 (i) right to an Indemnitee with respect indemnification for any of the foregoing to any Indemnified Matter caused by or the extent resulting from (A) the gross negligence or willful misconduct of that Indemniteesuch Indemnitee or the material breach in bad faith of the funding obligations of such Indemnitee under this Agreement, in each case as determined by a court of competent jurisdiction in a final non-appealable judgment or order(B) any claim of one or more Indemnitee against one or more other Indemnitees (other than claims against the EXHIBIT 10.1 ANNEX A Administrative Agent, (iiany Issuer, or any Arranger in their capacities as such) 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 not involving any Indemnified Matter that does not involve an act or omission of any Warnaco Entity Loan Party or affiliate thereof and any of their respective Affiliates or any of their respective directors, officers, employees, partners, representatives, advisors, attorneys, or agents. In the case of an investigation, litigation, or proceeding to which the indemnity in this Section 10.4(a) applies, such indemnity shall be effective whether or not such investigation, litigation, or proceeding is brought by one any Loan Party, any of their respective directors, any of its equity holders or creditors, an Indemnitee, or any other Person, whether or not an Indemnitee against another Indemniteeis otherwise a party thereto. Without limiting No Loan Party shall, without the foregoingprior written consent of each Indemnitee affected thereby, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from settle any threatened or connected with pending claim or action that would give rise to the past, present or future operations right of any Warnaco Entity involving Indemnitee to claim indemnification hereunder unless such settlement (x) includes a full and unconditional release of all liabilities arising out of such claim or action against such Indemnitee, (y) does not include any property subject statement as to a Collateral Documentor an admission of fault, culpability or damage failure to real act by or personal property or natural resources or harm or injury alleged to have resulted from any Release on behalf of Contaminants onsuch Indemnitee, upon or into such property or any contiguous real estate; and (iiz) any costs or liabilities incurred in connection with any Remedial Action concerning any Warnaco Entity; (iiirequires no action on the part of the Indemnitee other than its consent. This Section 10.4(a) 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, shall not apply with respect to Taxes other than any of such mattersTaxes that represent losses, such Indemnitee is a mortgagee pursuant to claims, damages, etc. arising from 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 the Facility Agents or such Lendernon-Tax claim.
(b) Group and the b. Each Borrower shall, shall jointly and severally, severally indemnify each Agent, each Arranger, each Lender and each Issuer for, and hold each Agentthe Agents, each Arrangerthe Arrangers, each Lender the Lenders and each Issuer the Issuers harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agentthe Agents, Arrangerthe Arrangers, Lender or any Issuer 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 Warnaco Entity Loan Party or any of the Parent Borrower’s Subsidiaries in connection with the transactions contemplated by this Agreement.
c. 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 (ca) Group 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 agreeto defend against such investigation, jointly litigation or proceeding, such Borrower shall promptly do so and severallysuch 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.
d. Each Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.410.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Indemnities. (a) 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 AffiliatesLessee will pay, and each of the directorshereby indemnifies, officerson an after-tax basis, employeesLessor and its assignees, agentsif any, representativefrom and against, attorneysany and all fees and taxes, consultants and advisors of levies, imposts, duties, charges or to withholdings, together with any penalties, fines or interest thereon (any of the foregoing (including those retained 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 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 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; (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 satisfaction or attempted satisfaction Aircraft Chattel Mortgage; provided, however, that, there shall 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 conditions 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 extent that validity thereof shall be contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and Lessee shall have set forth aside on its books adequate reserves with respect thereto in Article IIIaccordance with generally accepted accounting principles.
(b) Lessee agrees to defend, indemnify, pay and hold harmless Lessor, Agent and each Lender, and the officers, directors, employees, agents and affiliates of Lessor, Agent and each Lender, (each such Person being an “Indemnitee”collectively called the "Indemnitees") from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements and expenses of any kind or nature whatsoever (including without limitation the reasonable fees and disbursements of counsel to any for such Indemnitee) which may be imposed on, incurred by or asserted against any such Indemnitee Indemnitees in connection with any investigative, administrative or arising out of judicial proceeding, commenced or threatened by any investigation, litigation or proceedingPerson, whether or not any such Indemnitee is shall be designated as a party or a potential party thereto), whether direct, indirect, indirect or consequential and whether based on any federal, state or local law foreign laws, statutes, rules or other statutory regulationregulations (including without limitation securities and commercial laws, securities statutes, rules or commercial law or regulationregulations and Environmental Laws), or under on common law or in equityequitable cause or on contract or otherwise, that may be imposed on, incurred by, or on contract, tort or otherwiseasserted against any such Indemnitee, in any manner relating to or arising out of this Agreement, any Lease or the other Loan Document, any Secured Obligation, any Letter of Credit Transaction Documents or any act, event the transactions contemplated hereby or transaction related or attendant thereby (including without limitation Lenders' agreement to any thereof, make the Loans to Lessor 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 Loans) (collectively, collectively called the “"Indemnified Matters”Liabilities"); provided, however, provided that neither Group nor the Borrower Lessee shall not have any obligation under this Section 11.4 (i) to an any Indemnitee hereunder with respect to any Indemnified Matter caused by or resulting Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of that Indemnitee, Indemnitee as determined by a final judgment of a court of competent jurisdiction jurisdiction. To the extent that the undertaking to defend, indemnify, pay and hold harmless set forth in a final non-appealable judgment or order, (ii) with respect to taxes (and amounts relating thereto), the indemnification for which shall preceding sentence may 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 unenforceable because it is violative of any Warnaco Entity law or affiliate thereof public policy, Lessee shall contribute the maximum portion that it is permitted to pay and is brought satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred 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 Indemnitees or any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such Lenderthem.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Lease Agreement (Atlas Air Inc)
Indemnities. (a) Group and the The Borrower agreeagrees to indemnify, jointly and severally, to indemnify defend and hold harmless each Arranger, each Agent, each the Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representative, attorneys, consultants or any other Person affiliated with or representing the Lender (each, an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and advisors of or to liabilities (collectively, “Claims”) asserted by any of the foregoing (including those retained other party in connection with or related to or arising from, out of or under, the satisfaction transactions contemplated by the Loan Documents; and (b) all losses or attempted satisfaction expenses incurred to, or paid by an Indemnified Person in connection with or related to or arising from, out of any of or under, the conditions set forth in Article IIItransactions contemplated by the Loan Documents (including reasonable legal fees and expenses), except as to (a) or (b) for Claims and/or losses and/or expenses directly caused by such Indemnified Person’s gross negligence or willful misconduct. The Borrower hereby further indemnifies, defends and holds each such Indemnified Person being an “Indemnitee”) harmless from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements and expenses of any kind or nature whatsoever (including reasonable the fees and disbursements of counsel to for such Indemnified Person) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such Indemnitee) proceeding initiated by or on behalf of the Borrower, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker asserting any right to payment for the transactions contemplated hereby which may be imposed on, incurred by or asserted against any such Indemnitee Indemnified Person as a result of or 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 the transactions contemplated hereby 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 (collectivelyloan proceeds except for liabilities, the “Indemnified Matters”); providedobligations, howeverlosses, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements directly caused by or resulting from the such Indemnified Person’s 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 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 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 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 the Facility Agents or such Lendermisconduct.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Loan Agreement (Emc Metals Corp.)
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Arranger, each the Administrative Agent, the Collateral Agent, the Arranger and each Lender and (including each Issuer Person obligated on a Hedging Contract that is a Loan Document if such Person was a Lender, Agent or an Affiliate of an Agent at the time it entered into such Hedging Contract) and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, shareholders, controlling persons, members, 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 condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any 2ND LIEN CREDIT AGREEMENT KNOLOGY, INC. such Indemnitee) which 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, an Affiliate of the Borrower, 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 Disclosure Document, any First Lien Loan Document, 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 Term 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 not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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 the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, the Collateral Agent or any Lender, or the Administrative Agent or any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the ArrangersAdministrative Agent, the Facility Agents, Collateral Agent or such Lender or such Issuer or any agent on behalf of the Facility Agents such Agent or such Lender.
(b) Group The Borrower shall indemnify the Administrative Agent, the Collateral Agent and the Borrower shall, jointly and severally, indemnify each Agent, each Arranger, each Lender and each Issuer Lenders for, and hold each the Administrative Agent, each Arranger, each Lender the Collateral Agent and each Issuer the Lenders harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer the Collateral Agent and the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, 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 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch Indemnitee shall have 2ND LIEN CREDIT AGREEMENT KNOLOGY, INC. 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 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 (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) Group The Borrower agrees to and the Borrower agree, jointly and severally, to hereby does 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 Related Parties (including those retained in connection with the satisfaction or attempted satisfaction of any of the conditions condition set forth in Article III) and each of their respective successors and assigns (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 customary fees, disbursements and expenses of counsel financial and legal advisors to any such Indemnitee) which 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 theretothereto and regardless of whether such matter is initiated by a third party or by the Borrower 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 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to (i) any Indemnified Matter caused by or resulting 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, order or order of an arbitral tribunal and (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 action brought by one Indemnitee Secured Party against another IndemniteeSecured Party (except in its capacity as an Agent, if applicable). Without limiting the foregoing, “Indemnified Matters Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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 the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (Aor deed in lieu thereof) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such LenderIssuer. This Section 11.4(a) shall not apply with respect to taxes other than any taxes that represent losses or damages arising from any non-tax claim.
(b) Group The Borrower shall and the Borrower shall, jointly and severally, does hereby 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, any Lender or and any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group Promptly after receipt by an Indemnitee of service of any complaint or the commencement of any action or proceeding with respect to an Indemnified Matter, such Indemnitee will notify the Borrower in writing of such complaint or of the commencement of such action or proceeding, but failure to so notify the Borrower will relieve the Borrower from the obligation to indemnify such Indemnitee only if and only to the extent that such failure results in the forfeiture by the Borrower of substantial rights and defenses that actually and materially prejudice the Borrower, and will not in any event relieve the Borrower from any other obligation or liability that the Borrower may have to any Indemnitee otherwise than in accordance with the provisions hereof. If the Borrower so elects following its acknowledgment of its obligation to indemnify the Indemnitee, or if requested by such Indemnitee, the 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 Borrower agreeand such Indemnitee reasonably concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Borrower, jointly or if the Borrower fails 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 severallythe Borrower will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the Borrower 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 Borrower assumes, 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 Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) Group and the Borrower agreeBorrowers shall protect, jointly and severallydefend, to indemnify and hold save harmless each Arranger, each Agent, Administrative Agent and each Lender and each Issuer and each of their its respective Affiliatesshareholders, and each of the directors, officers, employeesemployees and agents (each, 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 “IndemniteeIndemnified Person”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind Liabilities imposed upon or nature (including reasonable fees and disbursements of counsel to any such Indemnitee) which may be imposed on, incurred by or asserted against any Indemnified Person, whether brought by a third party CONA – Healthcare Trust, Inc. 92119388.8 or any Borrower Party, by reason of (i) credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such Indemnitee credit, and in connection with or arising out of the transactions contemplated hereunder and thereunder and any actions or failures to act in connection therewith; (ii) ownership of the Mortgage, the Projects or any interest therein or receipt of any rents and the exercise of rights and remedies thereunder; (iii) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Projects or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (iv) any use, nonuse or condition in, on or about the Projects or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (v) performance of any labor or services or the furnishing of any materials or other property in respect of the Projects or any part thereof; (vi) the failure of any Person to file timely with the Internal Revenue Service an accurate Form 1099-B, Statement for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be required in connection with this Agreement, or to supply a copy thereof in a timely fashion to the recipient of the proceeds of the transaction in connection with which this Agreement is made; (vii) any securities filing of, or with respect to, Borrowers, any other Borrower Party or the Projects; (viii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnified Person or any of its Related Persons, any holders of securities or creditors, whether or not any such Indemnitee Indemnified Person, Related Person, holder or creditor is a party thereto, whether direct, indirect, or consequential and whether or not based on any federal, state or local law or other statutory regulation, securities or commercial law or regulationregulation or any other Requirements of Law or theory thereof, or under including common law or in law, equity, or on contract, tort or otherwise; (ix) all sums paid by Administrative Agent pursuant to Section 9.3, in any manner relating to or arising out of this Agreement, (x) any other Loan Document, any Secured Obligation, any Letter of Credit or any act, event or transaction related related, contemplated in 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 foregoing (collectively, the “Indemnified Matters” and, each, an “Indemnified Matter”); provided, however, that neither Group nor the Borrower Borrowers shall not have any obligation no liability under this Section 11.4 (i) 11.5 to an Indemnitee any Indemnified Person with respect to any Indemnified Matter, and no Indemnified Person shall have any liability with respect to any Indemnified Matter caused by or resulting other than to the extent such liability has resulted from the gross negligence or willful misconduct of that Indemniteesuch Indemnified Person, as determined by a court of competent jurisdiction in a final non-appealable judgment or orderorder or any dispute solely between or among Indemnified Persons. Furthermore, each Borrower (iion its own behalf and on behalf of each other Borrower Party) with respect waives and agrees not 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 assert against any Indemnified Person any right of contribution with respect to any Indemnified Matter Liabilities 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 may be imposed on, upon incurred by or into such property or asserted against any contiguous real estate; (ii) any costs or liabilities incurred in 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 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 the Facility Agents or such LenderRelated Person.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any Any indemnification or other protection provided to any Indemnitee Indemnified Person pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document and the Environmental Indemnity Agreement and all representations and warranties made in any Loan Document and the Environmental Indemnity Agreement shall (i) survive the termination of the Loan Commitment and the payment in full of the Secured other Obligations and (ii) inure to the benefit of any Person who was that at any time held a right thereunder (as an Indemnitee under this Agreement Indemnified Person) and, thereafter, its successors and permitted assigns to the extent the same is an Indemnified Person.
(c) Without limiting the terms of Section 11.26 hereof, in no event shall any Indemnified Person be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings). Borrowers (on their own behalf and on behalf of the other Loan DocumentBorrower Parties) hereby waive, release and agree not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.
Appears in 1 contract
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each Agent, the Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIIIII (Conditions to Initial 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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which that may be imposed on, incurred by or Amended and Restated Credit Agreement U.S. Concrete, Inc. 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 Secured Obligation, any Letter of Credit 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 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 not have any obligation liability under this Section 11.4 (i) to an Indemnitee with respect to any exemplary or consequential damages or any Indemnified Matter caused by or resulting 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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 the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (A) foreclosure by any Facility the Administrative Agent, any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such LenderIssuer.
(b) Group and The Borrower shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, 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 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch Indemnitee shall have Amended and Restated Credit Agreement U.S. Concrete, Inc. 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 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 (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Us Concrete Inc)
Indemnities. (a) Group 6.1 Each of the Company and the Borrower agreeControlling Shareholders (collectively, jointly the Indemnifying Parties and severallyindividually, an Indemnifying Party) undertakes to each of the Joint Sponsors, for itself and on trust for its other Indemnified Parties (as defined below), to indemnify and indemnify, hold harmless and keep fully indemnified each Arranger, each Agent, each Lender and each Issuer of the Joint Sponsors and each of their respective Affiliates and delegates under Clause 3.2 and any of their and their Affiliates’ respective representatives, and each of the directors, officers, employees, agentsassignees and agents (collectively, representativethe Indemnified Parties and individually, 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 IIIan Indemnified Party) (each such Person being on an “Indemnitee”after-Tax basis) from and against any and against:
(a) all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature claims (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 theretoclaim involves or results in any actions or proceedings), whether directdemands, indirectinvestigations, judgment, awards and proceedings, joint or consequential several, from time to time instituted, made or brought or threatened or alleged to be instituted, made, brought or threatened against or otherwise involve (together the Actions); and
(b) all losses, liabilities, damages, payments, expenses (including, without limitation, legal expenses and whether based on Taxes (including, without limitation, stamp duty and any federalpenalties and/or interest arising in respect of any Taxes)), state costs and charges (including, without limitation, all payments, expenses, costs or local law charges suffered, made or other statutory regulationincurred arising out of, securities or commercial law or regulation, or under common law in relation to or in equityconnection with the investigation, dispute, defence or on contractsettlement of or response to any such Actions or the enforcement of any such settlement or any judgment obtained in respect of any such Actions) (together, tort the Losses) which may be made or otherwiseincurred or suffered by, an Indemnified Party (with such amount of indemnity to be paid to the relevant Joint Sponsor to whom the Indemnified Party is related to cover all the Actions against and Losses suffered, made or incurred by such Indemnified Party) arising out of, in any manner relating relation to or arising out in connection with the Introduction or Admission, including, without limitation:
(i) the performance by any of the Joint Sponsors of their respective obligations or roles under this Agreement, any other Loan Documentthe Listing Document or Formal Notice or otherwise in connection with the Introduction;
(ii) the issue, any Secured Obligationpublication, any Letter of Credit or any actdistribution, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds making available of any of the Loans Listing Document, the Formal Notice and/or any notices, announcements, advertisements, communications, documents or Letters of Credit any listing materials whatsoever arising out of, in relation to or in connection with the Company or the Introduction (whether or not approved by the Joint Sponsors), and, in each case, any investigation supplement or amendment thereto;
(iii) any estimate, forecast, statement or expression of opinion, intention or expectation contained in any of the Listing Document, the Formal Notice and/or any notices, announcements, advertisements, communications, documents or any listing materials whatsoever arising out of, in relation to or in connection with the Company or the Introduction (whether or not approved by the Joint Sponsors), or in each case, any supplement or amendment thereto, being or alleged to be untrue, incomplete, inaccurate or misleading or based on unreasonable assumptions, or omitting or being alleged to have omitted to have taken account of a fact necessary in order to make it not misleading;
(iv) any breach or alleged breach on the part of the Indemnifying Parties of any potential matter covered hereby of the provisions of this Agreement or an action or omission of the Indemnifying Parties or any of their respective subsidiaries, directors, officers or employees (collectivelyas the case may be) resulting in a breach of any of the provisions of this Agreement;
(v) any of the Warranties given by each of the Company and the Controlling Shareholders being untrue, incorrect, inaccurate, misleading or having been breached in any respect or being alleged to be untrue, incorrect, inaccurate, misleading or alleged to have been breached in any respect;
(vi) any untrue, incomplete, inaccurate or misleading statement or alleged untrue, incomplete, inaccurate or misleading statement of a fact contained in the Listing Document, the “Indemnified Matters”); providedFormal Notice and/or any notices, howeverannouncements, that neither Group nor advertisements, communications, documents or any listing material whatsoever arising out of, in relation to or in connection with the Borrower shall Company or the Introduction (whether or not have approved by the Joint Sponsors) or, in each case, any obligation supplement or amendment thereto, or any omission or alleged omission to state a fact necessary in order to make the statements therein, in light of the circumstances under this Section 11.4 which they were made, not misleading, or any of the Listing Document, the Formal Notice and/or any notices, announcements, advertisements, communications, documents or any listing material whatsoever or any such supplement or amendment thereto not containing any information material in the context of the Introduction, whether required by Applicable Laws or not;
(ivii) to an Indemnitee with respect to any Indemnified Matter caused by breach or alleged breach of the Applicable Laws of any country or territory resulting from the gross negligence distribution of any of the Listing Document, the Formal Notice and/or any notices, announcements, advertisements, communications, documents or willful misconduct listing material whatsoever arising out of, in relation to or in connection with the Company or the Introduction (whether or not approved by the Joint Sponsors);
(viii) any statement in any of the Listing Document, the Formal Notice and/or in any notices, announcements, advertisements, communications, documents or listing material whatsoever made, given, released or arising out of, in relation to or in connection with the Company or the Introduction (whether or not approved by the Joint Sponsors) or, in each case, any supplement or amendment thereto, being or alleged to be defamatory of any person;
(ix) any failure or alleged failure by any of the Directors to comply with their respective obligations and duties under the Listing Rules or under Applicable Laws;
(x) the breach or alleged breach by any member of the Group of the Listing Rules or Applicable Laws;
(xi) the Introduction failing or being alleged to fail to comply with the requirements of the Stock Market Listing Rules, the Listing Rules, or any Applicable Laws of any applicable jurisdiction, or any condition or term of any Approvals in connection with the Introduction;
(xii) settlement of any investigation or proceedings by any Governmental Authority commenced or threatened in connection with the Introduction; or
(xiii) a Director being charged with an offence or prohibited by operation of law or otherwise disqualified from taking part in the management of the Company, or the commencement by any Governmental Authority of any public action, investigation or proceedings against a Director or an announcement by any such Governmental Authority that Indemniteeit intends to take any such action, as provided that the indemnity provided for in this Clause 6.1 shall not apply apply (other than in connection with the matters referred to in Clauses 6.1(ii) to (xiii)) to the extent where any such Action made against, or any such Loss suffered by, such Indemnified Party is finally judicially determined by a court of competent jurisdiction or finally determined by a properly constituted arbitral panel (as the case may be) to have arisen solely out of the fraud, gross negligence or wilful default on the part of such Indemnified Party.
6.2 If any of the Indemnifying Parties becomes aware of any claim which may give rise to a liability under the indemnity provided under Clause 6, it shall promptly give notice thereof to the other parties in writing with reasonable details thereof.
6.3 As soon as practicable after receipt by an Indemnified Party of notice of the commencement of an Action, such Indemnified Party shall, if a final non-appealable judgment or orderclaim in respect thereof is to be made against an Indemnifying Party, (ii) with respect notify the relevant Indemnifying Party in writing of the commencement of such Action, provided that any failure to taxes (and amounts relating thereto), notify would not prejudice the indemnification for which rights of the Indemnified Party. Counsel to such Indemnifying Party shall be governed solely and exclusively selected by Section 2.16the Joint Sponsors. Such Indemnifying Party may participate at its own expense in the defence of any such Action, and provided, however, that counsel to such Indemnifying Party shall not (iiiexcept with the consent of the Indemnified Parties) also be counsel to an Indemnitee the Indemnified Parties.
6.4 An Indemnifying Party shall not, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Indemnified Matter that does not involve an act Action, commenced 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 Documentthreatened, or damage any claim whatsoever in respect of which indemnification could be sought under this Clause 6 (whether or not the Indemnified Parties are actual or potential parties thereto).
6.5 Any settlement or compromise by any Indemnified Party in relation to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants onclaim shall be without prejudice to, upon or into such property or and without (other than any contiguous real estate; (iiobligations imposed on it by Applicable Laws) any costs accompanying obligation or liabilities incurred duty to mitigate the same in relation to, any claim, action or demand it may have or make against the relevant Indemnifying Party under this Agreement. The Indemnified Parties are not required to obtain consent from such Indemnifying Party with respect to such settlement or compromise. The rights of the Indemnified Parties herein are in addition to any rights that each Indemnified Party may have under Applicable Laws or otherwise and the obligations of the relevant Indemnifying Party herein shall be in addition to any liability which the relevant Indemnifying Party may otherwise have. If the relevant Indemnifying Party enters into any agreement or arrangement with any adviser for the purpose of or in connection with any Remedial Action concerning any Warnaco Entity; (iii) any costs the Introduction, the terms of which provide that the liability of the adviser to such Indemnifying Party or liabilities incurred in connection with any Environmental Lien; (iv) any costs or liabilities incurred in connection with any other matter under person is excluded or limited in any Environmental Lawmanner, including CERCLA and applicable state property transfer laws, whether, any of the Indemnified Parties may have joint and/or several liability with respect such adviser to such Indemnifying Party or to any other person arising out of the performance of its duties under this Agreement, the Indemnifying Party shall:
(a) not be entitled to recover any amount from any Indemnified Party which, in the absence of such mattersexclusion or limitation, such Indemnitee is a mortgagee pursuant Indemnifying Party would have been entitled 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 the Facility Agents or such Lender.recover;
(b) Group and indemnify 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, Indemnified Parties in respect of 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 increased liability to any agreement, arrangement third party which would not have arisen in the absence of such exclusion or understanding made by or on behalf of any Warnaco Entity in connection with the transactions contemplated by this Agreement.limitation; and
(c) Group take such other action as the Indemnified Parties may require to ensure that the Indemnified Parties are not prejudiced as a consequence of such agreement or arrangement.
6.6 For the avoidance of doubt, the indemnity under this Clause 6 shall cover all costs, charges and expenses which any Indemnified Party may suffer or incur or pay in disputing, settling or compromising any Action to which the Borrower agreeindemnity may relate and in establishing its right to indemnification under this Clause 6.
6.7 All amounts subject to indemnity under this Clause 6 shall be paid by the Indemnifying Party as and when they are incurred and shall be made gross, jointly free of any right of counterclaim or set off and severallywithout deduction or withholding of any kind, that other than any indemnification deduction or other protection provided withholding required by law. If an Indemnifying Party makes a deduction under this Clause 6, the sum due from such Indemnifying Party shall be increased to the extent necessary to ensure that, after the making of any Indemnitee pursuant deduction or withholding, the relevant Indemnified Party which is entitled to such payment receives a sum equal to the sum it would have received had no deduction or withholding been made.
6.8 If a payment under this Agreement Clause 6 will be or has been subject to Taxation, the relevant Indemnifying Party shall pay the relevant Indemnified Party on demand the amount (including pursuant to this Section 11.4) or after taking into account any other Loan Document shall (i) survive payment Taxation payable in full respect of the Secured Obligations amount and (iitreating for these purposes as payable any Taxation that would be payable but for a relief, clearance, deduction or credit) inure that will ensure that the relevant Indemnified Party receives and retains a net sum equal to the benefit sum it would have received had the payment not been subject to Taxation.
6.9 Liabilities of any Person who was at any time an Indemnitee the Joint Sponsors under this Agreement or shall be several (not joint nor joint and several). None of the Joint Sponsors shall be liable for any failure of the other Joint Sponsor to perform its respective obligations and no such failure shall affect the right of the other Joint Sponsor to enforce this Clause 6.
6.10 The provisions of the indemnities under this Clause 6 are not affected by any other Loan Documentterms set out in this Agreement and do not restrict the rights of the Indemnified Parties to claim damages on any other basis.
6.11 This Clause 6 supersedes paragraph 6 (Indemnities etc.) and Schedule A of the Mandate Letter and shall remain in full force and effect notwithstanding the completion of the Introduction in accordance with the terms of this Agreement or the rescission or termination of this Agreement.
Appears in 1 contract
Sources: Sponsors Agreement (Feishang Anthracite Resources LTD)
Indemnities. (a) Group and the Borrower agree, Each Loan Party jointly and severallyseverally ----------- agrees to indemnify, to indemnify pay and hold harmless each Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directorsaffiliates, officers, directors, employees, agents, representative, attorneys, consultants advisors 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) attorneys (each such Person being an “"Indemnitee”", and collectively, "Indemnitees") from and against any and all claims, damages, liabilities, obligations, losses, damages, penalties, actions, judgments, suitssuits and expenses (including, costswithout limitation, disbursements reasonable fees and expenses of any kind or nature (including reasonable fees and disbursements of counsel to any such Indemniteecounsel) which whatsoever that may be imposed on, incurred by by, or asserted or awarded against any such Indemnitee Indemnitee, in each case, as a result of its being a party to this Agreement or the transactions consummated pursuant to this Agreement or arising out of or in connection with or arising out of by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceedingproceeding arising out of, related to or in connection with (a) the Deflecta Acquisition or any related transaction of any Loan Party or any of their respective Subsidiaries or Affiliates, (b) any Permitted Acquisition or proposed acquisition or similar business combination or proposed business combination by Holdings, any Borrower or any of their respective Subsidiaries or their Affiliates of all or any portion of the shares of capital stock or all or substantially all of the property and assets of any other Person, (c) any use made or proposed to be made with the proceeds of the Loans or (d) the actual or alleged presence of Hazardous Materials on any property of any Loan Party or any of their respective Subsidiaries or any Environmental Claims or proceedings relating in any way to any Loan Party or any of their respective Subsidiaries or any of their respective properties, in each case, whether or not such investigations, litigation or proceeding is brought by Holdings, any such Borrower, any of their respective shareholders or creditors or an Indemnitee or an Indemnitee is otherwise a party thereto, whether direct, indirect, or consequential thereto and whether based on any federalor not the Deflecta Acquisition is consummated, state except to the extent such liability, obligation, loss, damage, penalty, action, judgment, suit, claim or local law or other statutory regulationexpense is found in a final, 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 not have any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined nonappealable judgment by a court of competent jurisdiction in a final non-appealable judgment or order, (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 such Indemnitee gross negligence or willful misconduct. Each Loan Party jointly and severally further agrees that no Indemnitee shall have any Release of Contaminants onliability (whether direct or indirect, upon in contract or into such property tort or otherwise) to any Loan Party or any contiguous real estate; (ii) any costs of their respective Subsidiaries arising out of, related to or liabilities incurred in 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 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the Deflecta Acquisition or any of the transactions contemplated herein or in the Loan Documents, except for direct, as opposed to consequential, damages determined in a final nonappealable judgment by a court of competent jurisdiction to have resulted form such Indemnitee's gross negligence or willful misconduct. This subsection 9.1 and other indemnification provisions -------------- contained within the Loan Documents shall survive the termination of this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. Borrowers shall indemnify the Agent (a) Group and the Borrower agree, jointly and severally, to indemnify and hold harmless each Arranger, each Agentany sub-agent thereof), each Lender and each Issuer and each of their respective Affiliatesthe L/C Issuer, and each Related Party 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) Persons (each such Person being called an “Indemnitee”) from against, and against hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements liabilities and related expenses of any kind or nature (including reasonable fees the fees, charges and disbursements of any counsel to for any such Indemnitee) which may be imposed on), incurred by any Indemnitee or asserted against any such Indemnitee by any third party or by a Borrower arising out of, in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto, whether direct, indirectwith, or consequential and whether based on any federal, state as a result of (i) the execution 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 delivery of this Agreement, any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Agent (and any Secured Obligationsub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or any act, event or transaction related or attendant to any thereof, or the use or intended proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on, at, under or from any property owned, leased or operated by Parent Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to Parent Borrower or any of its Subsidiaries and (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the Loans foregoing, whether based on contract, tort or Letters any other theory, whether brought by a third party or by a Credit Party or any Credit Party’s directors, shareholders or creditors, and regardless of Credit or in connection with whether any investigation of any potential matter covered hereby (collectivelyIndemnitee is a party thereto; provided that such indemnity shall not, the “Indemnified Matters”); provided, however, that neither Group nor the Borrower shall not have any obligation under this Section 11.4 (i) to an Indemnitee with respect as to any Indemnified Matter caused Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by or resulting a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of that such Indemnitee or (y) result from a claim brought by a Credit Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Parent Borrower or such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction in a final nonjurisdiction. To the extent that any Borrower for any reason fails to indefeasibly pay any amount required under the paragraph above or Section 1.3(e) to be paid by it to the Agent (or any sub-appealable judgment or order, (ii) with respect to taxes (and amounts relating theretoagent thereof), the indemnification for which shall be governed solely and exclusively by Section 2.16, and (iii) to an Indemnitee with respect to L/C Issuer or any Indemnified Matter that does not involve an act or omission Related Party of any Warnaco Entity or affiliate thereof and is brought by one Indemnitee against another Indemnitee. Without limiting of the foregoing, Indemnified Matters include each Lender severally agrees to pay to the Agent (ior any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Pro Rata Share of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent) all Environmental Liabilities and Costs arising from or connected with the pastL/C Issuer in its capacity as such, present or future operations against any Related Party 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 the foregoing acting for the Agent (or any contiguous real estate; (iisuch sub-agent) any costs or liabilities incurred L/C Issuer in 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 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 the Facility Agents or such Lendercapacity.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreement.
(c) Group and the Borrower agree, jointly and severally, that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Indemnities. (a) Group and To the Borrower agreefullest extent permitted by law, jointly and severallythe Company agrees to indemnify, to indemnify and hold harmless each Arrangerand defend the Issuer, each Agentthe Program Participants, each Lender and each Issuer the Trustee, and each of their respective Affiliatesofficers, governing members, directors, officials, employees, attorneys and agents (collectively, the “Indemnified Parties”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to:
(i) the Bonds, the Indenture, the Agreement, or the Tax Agreement or the execution or amendment hereof or thereof or in connection with transactions contemplated hereby or thereby, including the issuance, sale or resale of the Bonds;
(ii) any act or omission of the Company or any of its agents, contractors, servants, employees, tenants or licensees in connection with the Project or the Facilities, the operation of the Project or the Facilities, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or the Facilities or any part thereof;
(iii) any lien or charge upon payments by the Company to the Issuer and the Trustee hereunder in favor of any party other than the Issuer or the Trustee, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the Issuer or the Trustee in respect of any portion of the Project or the Facilities;
(iv) any violation of any Environmental Regulations with respect to, or the release of any Hazardous Substances from, the Project or the Facilities or any part thereof;
(v) the defeasance and/or redemption, in whole or in part, of the Bonds;
(vi) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in any offering or disclosure document or disclosure or continuing disclosure document for the Bonds or any of the documents relating to the Bonds, or any omission or alleged omission from any offering or disclosure document or disclosure or continuing disclosure document for the Bonds of any material fact necessary to be stated therein in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
(vii) any declaration of taxability of interest on the Bonds, or allegations that interest on the Bonds is taxable or any regulatory audit or inquiry regarding whether interest on the Bonds is taxable;
(viii) the Trustee’s acceptance or administration of the trust of the Indenture, or the exercise or performance of any of its powers or duties thereunder or under any of the documents relating to the Bonds to which it is a party; except (A) in the case of the foregoing indemnification of the Trustee or any of its respective officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the negligence or willful misconduct of such Indemnified Party; or (B) in the case of the foregoing indemnification of the Issuer or the Program Participants or any of their officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the willful misconduct of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Company, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel reasonably acceptable to the Indemnified Party, and each shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Company shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the Company if in the judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel.
(b) The Company hereby agrees to indemnify and hold the Trustee and its directors, officers, employees, agents, representativeand employees (collectively, 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 “IndemniteeIndemnitees”) harmless from and against any and all claims, damages, liabilities, obligations, losses, damages, fines, penalties, actionsand expenses, judgmentsincluding out of pocket, suitsincidental expenses, costslegal fees and expenses, disbursements and the allocated costs and expenses of any kind or nature in-house counsel and legal staff (including reasonable fees and disbursements of counsel to any such Indemnitee“Losses”) which that may be imposed on, incurred by by, or asserted against against, the Indemnitees or any such Indemnitee of them in connection with or arising out of any investigationthe Trustee’s performance under the Indenture, litigation this Agreement 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 financing document. The Trustee shall not have be liable for any obligation under this Section 11.4 (i) to an Indemnitee with respect to any Indemnified Matter caused action taken or omitted by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by it in good faith unless a court of competent jurisdiction in a final non-appealable judgment determines that the Trustee’s negligent or order, (ii) with respect willful misconduct was the primary cause of any Losses. In addition to taxes (and amounts relating thereto)the immediately preceding sentence, the indemnification for which shall Company also agrees to indemnify and hold the Indemnitees and each of them harmless from and against any and all Losses that may be governed solely and exclusively by Section 2.16imposed on, 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 Documentincurred by, 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 asserted against the Indemnitees or any contiguous real estate; (ii) of them for following any costs instruction or liabilities incurred in 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 Environmental Law, including CERCLA and applicable state property transfer laws, whether, with respect direction upon which the Trustee is authorized to any of such matters, such Indemnitee is a mortgagee rely pursuant to any leasehold mortgagethe terms of the Indenture, 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 Issuerthis Agreement, 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 the Facility Agents or such Lender.
(b) 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 Warnaco Entity in connection with the transactions contemplated by this Agreementfinancing documents.
(c) Group The rights of any persons to indemnity hereunder and the Borrower agree, jointly rights to payment of fees and severally, that any indemnification or other protection provided to any Indemnitee reimbursement of expenses pursuant to this Agreement (including pursuant to shall survive the final payment or defeasance of the Bonds and, in the case of the Trustee, any resignation or removal of the Trustee for any reason. The provisions of this Section 11.4) or any other Loan Document shall (i) survive payment in full the termination of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan DocumentAgreement.
Appears in 1 contract
Indemnities. (a) Group and the The Borrower agree, jointly and severally, agrees to indemnify and hold harmless each the Administrative Agent, Arranger, each Agent, each Lender and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, representativetrustees, 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 condition set forth in Article IIIIII (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 expenses, joint or several, of any kind or nature (including reasonable fees fees, disbursements and disbursements expenses of counsel financial and legal advisors to any such Indemnitee) which 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 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 Obligation 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 not have any obligation liability under this Section 11.4 (i) 8.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting 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 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 Matters” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any Warnaco Entity 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; migrating from such property, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning the Borrower or any Warnaco Entity; of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien; Lien on Real Property or any asset owned or leased by the Borrower or any of its Subsidiaries and (iv) any costs or liabilities concerning the Borrower or any of its Subsidiaries, including their operations and owned or leased Real Property, incurred in connection with any other matter under any Environmental Law, including CERCLA 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 of such mattersmatter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any Warnaco Entity 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 (A) foreclosure by the Administrative Agent, any Facility Lender, or the Administrative Agent, any Lender or any Issuer, or any Facility Agent, any Lender or any Issuer having become the successor in interest to the Borrower or any Warnaco Entity, of its Subsidiaries and (By) to the extent attributable solely to acts or omissions of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, such Lender or such Lenderany other Indemnitee.
(b) Group and The Borrower shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, and each Lender and each Issuer for, and hold each the Administrative Agent, each Arranger, and each Lender and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer the Arranger and the Lenders for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of the Borrower or any Warnaco Entity of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Borrower, 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 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 agreeto defend against such investigation, jointly litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and severallysuch 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 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 (including pursuant to this Section 11.48.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who that was at any time an Indemnitee under this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.)
Indemnities. (a) Group and the Borrower agree, jointly and severally, The Borrowers agrees to indemnify and hold harmless each Arrangerthe Administrative Agent, each the Syndication Agent, the Documentation 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 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 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 Borrowers shall not have any obligation under this Section 11.4 (i) 9.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence or negligence, willful misconduct or breach of its obligations under any Loan Document of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (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 the Company or any Warnaco Entity 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 the Company or any Warnaco Entityof 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 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 Company or any Warnaco Entityof its Subsidiaries, or the owner, lessee or operator of any property of the Company or any Warnaco Entity 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 any Facility Agent, the Administrative Agent any Lender or any Issuer, or any Facility the Administrative Agent, any Lender or any Issuer having become the successor in interest to the Company or any Warnaco Entityof its Subsidiaries, and (B) attributable solely to acts of the Arrangers, the Facility AgentsAdministrative Agent, such Lender or such Issuer or any agent on behalf of the Facility Agents Administrative Agent, or such Lender.
(b) Group and The Borrowers shall indemnify the Borrower shall, jointly and severally, indemnify each Administrative Agent, each Arranger, each Lender the Lenders and each Issuer for, and hold each the Administrative Agent, each Arranger, each Lender the Lenders and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any the Administrative Agent, Arranger, Lender or any Issuer 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 Warnaco Entity Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
(c) Group The Administrative Agent, Lender and each Issuer agree that in the event that any such investigation, litigation or proceeding set forth in subparagraph (b) above is asserted or threatened in writing or instituted against it or any other Indemnitee, or any Remedial Action, is requested of it or any of its officers, directors, Administrative Agents and employees, for which any Indemnitee may desire indemnity or defense hereunder, such Indemnitee shall promptly notify the Borrowers in writing.
(d) The Borrowers, at the request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Borrower agreeBorrowers, jointly in any event, may participate in the defense thereof with legal counsel of the Borrowers' choice. In the event that such Indemnitee requests the Borrowers to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrowers shall promptly do so and severallysuch 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 or requested Remedial Action, shall vitiate or in any way impair the Borrowers' obligation and duty hereunder to indemnify and hold harmless such Indemnitee.
(e) Each Borrowers agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.49.4) or any other Loan Document shall (i) survive payment in full of the Secured Obligations and (ii) inure to the benefit of any Person who was at any time an Indemnitee under this Agreement or any other Loan Document.
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