Exhibit 4.3
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, dated as of September 11, 1997, among XXXX PETROLEUM
CORPORATION, a Delaware corporation ("Xxxx Petroleum") and BANK ONE, TEXAS,
N.A., a national banking association ("Bank").
WHEREAS, at the request of Xxxx Petroleum, Bank has agreed to extend a loan
to Western Pacific Airlines, Inc. ("Western") in amounts of up to $10,000,000
(the "Loan"); and
WHEREAS, to document the Loan, Bank and Western have entered into a Note
and certain other collateral documents covering various personal property
collateral, the Note and other documents being dated as of September 11, 1997
(the "Loan Documents"); and
WHEREAS, to induce the Bank to make the Loan, Xxxx Petroleum has entered
into a Limited Guaranty dated as of September 11, 1997 pursuant to which it
guarantees any and all obligations owed the Bank by Western pursuant to the Note
(the "Guaranty"); and
WHEREAS, in further consideration of the Bank's extending the Loan and
entering into the Loan Documents, Xxxx Petroleum has agreed to indemnify the
Bank as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Xxxx Petroleum agrees to indemnify and hold harmless the Bank and its
respective officers, employees, agents, attorneys and representatives
(singularly, an "Indemnified Party", and collectively, the "Indemnified
Parties") from and against any loss, cost, liability, damage or expense
(including the reasonable fees and out-of-pocket expenses of counsel to the
Bank, including all local counsel hired by such counsel) ("Claim") incurred by
the Bank in any respect whatsoever as a result of making the Loan, including,
but not limited to, any loss, cost, liability, damage or expense (including
reasonable fees and out-of-of pockets expenses of counsel to the Bank) incurred
by Bank in investigating or preparing for, defending against, or providing
evidence, producing documents or taking any other action in respect of any
commenced or threatened litigation, bankruptcy or other insolvency proceeding,
administrative proceeding or investigation under any federal securities law,
federal or state environmental law, federal bankruptcy statute, or any other
statute of any jurisdiction, or any regulation, or at common law or otherwise,
which is alleged to arise out of or is based upon any acts, practices or
omissions or alleged acts, practices or omissions of Western, Xxxx Petroleum or
their agents or arises in connection with the duties, obligations or performance
of the Indemnified Parties in negotiating, preparing, executing, accepting,
keeping, completing, countersigning, issuing, selling, delivering, releasing,
assigning, handling, certifying, processing or receiving or taking any other
action with respect to the Loan Documents, including, but not limited to the
taking of collateral pursuant to Loan Documents or the enforcing of the same,
and all documents, items and materials contemplated thereby even if any of the
foregoing arises out of an Indemnified Party's ordinary
negligence. The indemnity set forth herein shall be in addition to any other
obligations or liabilities of Xxxx Petroleum to the Bank under its Guaranty or
at common law or otherwise, and shall survive any termination of the Loan
Documents, or the Guaranty, and the payment of all indebtedness of Western or
Xxxx Petroleum to the Bank under the Loan Documents and the Guaranty, provided
that Xxxx Petroleum shall have no obligation hereunder to the Bank with respect
to any of the foregoing arising out of the gross negligence or willful
misconduct of the Bank. THE PARTIES INTEND FOR THE PROVISIONS OF THIS SECTION 1
TO THE INDEMNIFICATION AGREEMENT TO APPLY TO AND PROTECT EACH INDEMNIFIED PARTY
FROM THE CONSEQUENCES OF STRICT LIABILITY IMPOSED OR THREATENED TO BE IMPOSED ON
ANY SUCH INDEMNIFIED PARTY AS WELL AS FROM THE CONSEQUENCES OF ITS OWN
NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE, CONTRIBUTING, OR
CONCURRING CAUSE OF ANY CLAIM.
2. If any Claim is asserted against any Indemnified Party, the
Indemnified Party shall endeavor to notify Xxxx Petroleum of such Claim (but
failure to do so shall not affect the indemnification herein made except to the
extent of the actual harm caused by such failure). The Indemnified Party shall
have the right to employ, at Xxxx Petroleum's expense, counsel of the
Indemnified Parties' choosing and to control the defense of the Claim. Xxxx
Petroleum may at its own expense also participate in the defense of any Claim.
Each Indemnified Party may employ separate counsel in connection with any Claim
to the extent such Indemnified Party believes it reasonably prudent to protect
such Indemnified Party.
3. Xxxx Petroleum hereby acknowledges that it fully understands that the
Loan is being made by the Bank to Western solely as an accommodation to Xxxx
Petroleum and that the Bank has not performed its normal level of due diligence
on Western nor has it performed its normal underwriting procedures on the Loan.
Xxxx Petroleum further understands and agrees that the Bank makes no
representation or warranty whatsoever with regard to the financial ability,
solvency or other financial condition of Western nor has it performed any due
diligence with respect to the collateral being pledged to the Bank by Western.
Xxxx Petroleum hereby acknowledges that neither the Bank's failure to perform
due diligence on Western nor the Bank's failure to perform its normal
underwriting procedures with respect to such loan to Western shall in any way
affect Xxxx Petroleum's obligations to indemnify Bank pursuant to this
Agreement.
4. The execution, delivery and performance of this Agreement by Xxxx
Petroleum has been duly authorized by all necessary corporate action by Xxxx
Petroleum, and constitutes legal, valid and binding obligations of Xxxx
Petroleum, enforceable in accordance with its respective terms, except as
limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights and except to the extent
specific remedies may generally be limited by equitable principles.
5. This Agreement shall be binding upon and inure to the benefit of Bank
and Xxxx Petroleum, and their respective successors and assigns, provided,
however, that Xxxx Petroleum may not assign any rights, powers, duties or
obligations under this Agreement.
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6. This Agreement has been executed and delivered in the State of Texas,
shall be governed by and construed in accordance with the laws of the State of
Texas, and shall be performable by the parties hereto in Dallas County, Texas.
7. This Agreement may be separately executed in any number of
counterparts, each of which shall be an original, but all of which, taken
together, shall be deemed to constitute one and the same agreement.
8. THIS WRITTEN INDEMNIFICATION AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year above written.
XXXX PETROLEUM CORPORATION
a Delaware corporation
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx Xx.
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Title: Executive Vice President
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BANK ONE, TEXAS, N.A.
a national banking association
By: /s/Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President
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