Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund. b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12. c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement. d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith. e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim. f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement. g) The foregoing provisions for indemnification shall survive the termination of this Agreement. h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 4 contracts
Sources: Collateral Sub Advisory Agreement (Nuveen Long/Short Commodity Total Return Fund), Collateral Sub Advisory Agreement (Nuveen Long/Short Commodity Total Return Fund), Collateral Sub Advisory Agreement (Nuveen Long/Short Commodity Total Return Fund)
Indemnity. (a) In any threatenedEach Seller shall release, pending or completed actiondefend, suitindemnify and hold harmless Buyer, or proceeding to which Collateral Subadvisor, Affiliates of Buyer and its shareholders, and their respective officers, directors, employees or associated persons shareholders, partners, members, owners, employees, agents, attorneys, Affiliates and advisors (collectivelyeach an “Indemnified Person” and collectively the “Indemnified Persons”), “its affiliates”) was or is on a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenet after-tax basis, the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, fees, reasonable costs, expenses (including attorneys’ fees reasonable legal fees, charges, and accountants’ feesdisbursements of any counsel for any such Indemnified Person and expenses), judgments and amounts paid in settlement actually and reasonably penalties or fines of any kind that may be imposed on, incurred by it or its affiliates asserted against any such Indemnified Person (collectively, the “Indemnified Amounts”) in any way relating to, arising out of or resulting from or in connection with (i) the Repurchase Documents, the Purchased Asset Documents, the Purchased Assets, the Pledged Collateral, the Transactions, any Mortgaged Property or related property, or any action taken or omitted to be taken by any Indemnified Person in connection with or under any of the foregoing, or any transaction contemplated hereby or thereby, or any amendment, supplement or modification of, or any waiver or consent under or in respect of any Repurchase Document, any Transaction, any Purchased Asset, any Purchased Asset Document, or any Pledged Collateral, (ii) any claims, actions or damages by an Underlying Obligor or lessee with respect to a Purchased Asset, (iii) any violation or alleged violation of, non–compliance with or liability under any Requirements of Law, (iv) ownership of, Liens on, security interests in or the exercise of rights or remedies under any of the items referred to in the preceding clause (i), (v) any accident, injury to or death of any person or loss of or damage to property occurring in, on or about any Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (vi) any use, nonuse or condition in, on or about, or possession, alteration, repair, operation, maintenance or management of, any Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (vii) any failure by Seller to perform or comply with any Repurchase Document, Purchased Asset Document or Purchased Asset, (viii) performance of any labor or services or the furnishing of any materials or other property in respect of any Mortgaged Property or Purchased Asset, (ix) any claim by brokers, finders or similar Persons claiming to be entitled to a commission in connection with any actionlease or other transaction involving any Repurchase Document, suit Purchased Asset or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in Mortgaged Property, (x) the execution, delivery, filing or not opposed to the best interests recording of any Repurchase Document, Purchased Asset Document or any memorandum of any of the Fundforegoing, and provided that its conduct does not constitute willful misfeasance(xi) any Lien or claim arising on or against any Purchased Asset or related Mortgaged Property under any Requirements of Law or any liability asserted against Buyer or any Indemnified Person with respect thereto, bad faith (xii) (1) a past, present or future violation or alleged violation of any Environmental Laws in connection with any Mortgaged Property by any Person or other source, whether related or unrelated to Seller or any Underlying Obligor, (2) any presence of any Materials of Environmental Concern in, on, within, above, under, near, affecting or emanating from any Mortgaged Property in violation of Environmental Law, (3) the failure to timely perform any Remedial Work required under the Purchased Asset Documents or pursuant to Environmental Law, (4) any past, present or future activity by any Person or other source, whether related or unrelated to any Seller or any Underlying Obligor in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any Mortgaged Property of any Materials of Environmental Concern at any time located in, under, on, above or affecting any Mortgaged Property, in each case, in violation of Environmental Law, (5) any past, present or future actual Release (whether intentional or unintentional, direct or indirect, foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting any Mortgaged Property by any Person or other source, whether related or unrelated to any Seller or any Underlying Obligor, in each case, in violation of Environmental Law, (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Lien on any Mortgaged Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant to any Environmental Law, or (7) any misrepresentation or failure to perform any obligations pursuant to any Repurchase Document or Purchased Asset Document relating to environmental matters in any way, or (xiii) any Seller’s conduct, activities, actions and/or inactions in connection with, relating to or arising out of any of the foregoing clauses of this Section 13.01, that, in each case, results from anything whatsoever other than any Indemnified Person’s gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Managerwillful misconduct, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered determined by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent competent jurisdiction pursuant to a settlement approved by the Indemniteefinal, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth hereinnon-appealable judgment. Notwithstanding the foregoing, Sellers shall have no liability to any Indemnified Person under clauses (v), (vi), (viii) or (xii) of this Section 13.01 for any claims arising as a result of activities or events which occur at any time more than six (6) months after Buyer (or one of its Affiliates) takes title to the Indemnitor shallrelated Mortgaged Property. In any suit, proceeding or action brought by an Indemnified Person in connection with any Purchased Asset for any sum owing thereunder, or to enforce any provisions of any Purchased Asset, each Seller shall defend, indemnify and hold such Indemnified Person harmless from and against all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction of liability whatsoever of the account debtor or Underlying Obligor arising out of a breach by any Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at all timesany time owing to or in favor of such account debtor or Underlying Obligor from any Seller. In the case of an investigation, have litigation or other proceeding to which the right indemnity in this Section 13.01 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Seller, an Indemnified Person or any other Person or any Indemnified Person is otherwise a party thereto and whether or not any Transaction is entered into. This Section 13.01(a) shall not apply with respect to offer Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.
(b) If for any reason the indemnification provided in this Section 13.01 is unavailable to settle any mattersthe Indemnified Person or is insufficient to hold an Indemnified Person harmless, even though such Indemnified Person is entitled to indemnification under the express terms thereof, then the applicable Seller shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by such Indemnified Person on the one hand and such Seller on the other hand, the relative fault of such Indemnified Person, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementany other relevant equitable considerations.
g(c) An Indemnified Person may at any time send Sellers a notice showing the calculation of Indemnified Amounts, and Sellers shall pay such Indemnified Amounts to such Indemnified Person within ten (10) Business Days after Sellers receive such notice. The foregoing provisions for indemnification obligations of Sellers under this Section 13.01 shall apply (without duplication) to Eligible Assignees and Participants and survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 4 contracts
Sources: Amendment No. 4 to Third Amended and Restated Master Repurchase and Securities Contract (Ares Commercial Real Estate Corp), Master Repurchase and Securities Contract (Ares Commercial Real Estate Corp), Master Repurchase and Securities Contract (Ares Commercial Real Estate Corp)
Indemnity. (a) In any threatenedEach Credit Party that is a signatory hereto shall jointly and severally indemnify and hold harmless each of Agent, pending or completed actionLenders and their respective Affiliates, suit, or proceeding to which Collateral Subadvisor, its shareholders, and each such Person's respective officers, directors, employees or associated persons employees, attorneys, agents and representatives (collectivelyeach, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise"Indemnified Person"), the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all suits, liabilityactions, damageproceedings, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit damages, losses, liabilities and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ ' fees and accountants’ feesdisbursements and other costs of investigation or defense, including those incurred upon any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the Indemnitee result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such 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, including any and all Environmental Liabilities and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (collectively, "Indemnified Liabilities"); provided, that no such settlement Credit Party shall be liable for any indemnification to an Indemnified Person to the extent that any such losssuit, liabilityaction, proceeding, claim, damage, cost loss, liability or expense (including reasonable attorneys’ and accountants’ fees) was caused by results from that Indemnified Person's gross negligence or resulted from a material violation of this Agreement by the Indemnitor or violation willful misconduct. Without limitation of the standard rights to indemnification specified herein, each Indemnified Person hereby agrees to provide Borrower with commercially reasonable notice of conduct set forth herein. Notwithstanding (i) any suit, action, proceeding, claim, damage, loss, liability or expense which, in the foregoingdetermination of such Indemnified Person, the Indemnitor shall, at all times, have the right could reasonably be likely to offer to settle any matters, and if the Indemnitor successfully negotiates result in a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter claim or demand for indemnification in accordance with the terms provisions of this Section 1.13(a) by such Indemnified Person and conditions of the proposed (ii) any settlement or judicial or administrative determination of any matter described in the Indemnitee may refuse preceding clause (i). NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) To induce Lenders to settle provide the matter and continue its defense LIBOR Rate option on the terms provided herein, if (i) any LIBOR Loans are repaid in which latter event the maximum liability of the Indemnitor whole or in part prior to the Indemnitee shall be the amount last day of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination any applicable LIBOR Period (whether that repayment is made pursuant to any provision of this Agreement.
h) Collateral Subadvisor acknowledges Agreement or any other Loan Document or occurs as to it that the indemnities provided in this Agreement a result of acceleration, by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event operation of any liability accruing to the extent, if any, caused by law or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.otherwise);
Appears in 4 contracts
Sources: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)
Indemnity. a) In any threatenedaddition to the payment of expenses pursuant to subsection 10.2, pending whether or completed actionnot the transactions contemplated hereby shall be consummated, suitCompany agrees to defend, or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless Agents and Lenders, and the officers, directors, employees trustees, partners, employees, agents, attorneys and affiliates of any of Agents and Lenders (collectively called the "Indemnitees") from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or associated persons nature whatsoever (collectivelyincluding, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisewithout limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding commenced or threatened by any Person, suit whether or proceeding not any such Indemnitee shall be designated as a party or a potential party thereto), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including, without limitation, securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against Collateral Subadvisor or its affiliates mayany such Indemnitee, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor manner relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms arising out of this Agreement or involved willful misfeasancethe other Loan Documents or the transactions contemplated hereby or thereby (including, bad faith without limitation, Lenders' agreement to make the Loans hereunder or the use or intended use of the proceeds of any of the Loans or the issuance of Letters of Credit hereunder or the use or intended use of any of the Letters of Credit) (collectively called the "Indemnified Liabilities"); provided that Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent, and only to the extent, of any particular liability, obligation, loss, damage, penalty, claim, cost, expense or disbursement that arose from the gross negligence on the part or willful misconduct of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered that Indemnitee as determined by a final judgment of a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may becompetent jurisdiction. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to defend, suit or proceeding referred to in subsection (a) or (c) aboveindemnify, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or preceding sentence may be availableunenforceable because it is violative of any law or public policy, any indemnified party reasonably determines Company shall contribute the maximum portion that its interests are or may be, in whole or in part, adverse it is permitted to pay and satisfy under applicable law to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Aurora Foods Inc /Md/), Credit Agreement (Aurora Foods Inc /De/), Credit Agreement (MBW Foods Inc)
Indemnity. a) In any threatenedaddition to the payment of expenses pursuant to Section 8.1 hereof, pending or completed actionand irrespective of whether the transactions contemplated hereby are consummated, suiteach Borrower agrees to indemnify, or proceeding to which Collateral Subadvisorexonerate, its shareholdersdefend, pay, and hold harmless Lender, and the officers, directors, employees or associated persons employees, and agents of and counsel to Lender and such holders (collectively, the “its affiliatesIndemnitees” and individually, an “Indemnitee”) was from and against any and all liabilities, obligations, losses, damages, penalties, actions, causes of action, judgments, suits, claims, costs, expenses, and disbursements of any kind or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (including, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable out-of-pocket fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any actioninvestigation, suit administrative, or proceeding if Collateral Subadvisor acted in good faith and in judicial proceeding, whether such Indemnitee shall be designated a manner it reasonably believed to party thereto), that may be in imposed on, incurred by, or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding asserted against Collateral Subadvisor or its affiliates maysuch Indemnitee, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor manner relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms arising out of this Agreement or involved willful misfeasanceany other Loan Document, bad faith the use or gross negligence on intended use of the part proceeds of Collateral Subadvisor in the performance Loans or the consummation of its duties under the transactions contemplated by this Agreement, including any matter relating to or arising out of the filing or recordation of any of the Loan Documents which filing or recordation is done based upon information supplied by reason of any Borrower to Lender and its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections counsel (a) or (c) abovethe “Indemnified Liabilities”); provided, unless ordered however, that no Borrower shall be liable with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “willful misconduct of any such Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) abovepay, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless set forth in the Fund preceding sentence may be unenforceable because it is violative of any law or public policy and Manager from and with respect such Borrower is required to make a payment to any amounts awarded Indemnitee pursuant to this Section 8.2, such other partyBorrower shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties The obligations of Borrowers under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Section 8.2 shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable payment in full of the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this AgreementObligations.
Appears in 4 contracts
Sources: Credit Agreement (Silvercrest Asset Management Group Inc.), Amendment and Restatement Agreement (Silvercrest Asset Management Group Inc.), Credit Agreement (Silvercrest Asset Management Group Inc.)
Indemnity. a) In any threatenedVendor hereby agrees to release, pending or completed actionIndemnify, suit, or proceeding to which Collateral Subadvisordefend and hold Buyer, its subsidiaries, affiliates and shareholders, and all of their respective officers, directors, employees or associated persons members, employees, agents, successors and assigns (collectively, “its affiliates”collectively referred to as the "Buyer Indemnitees") was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates harmless against any lossand all losses, liabilityliabilities, damagedamages, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundcosts, and provided that its conduct does not constitute willful misfeasance, bad faith expenses resulting or gross negligence arising (directly or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
bindirectly) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections from (a) infringement or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense alleged infringement of any action, suit United States or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal foreign patent or any other expenses reasonably incurred in connection with investigating intellectual property right by the services provided hereunder or defending such claim.
f) None by any of the foregoing provisions goods delivered hereunder which were designed or manufactured by Vendor; and (b) for indemnification shall be applicable with respect deaths of or injuries to default judgmentsany persons whomsoever, confessions of judgment and for loss of, damage to delay in delivery or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor destruction of any lossproperty arising out of or in any way connected with the services performed or goods sold hereunder, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement except only to the extent such lossloss is caused solely by the gross negligence or willful misconduct of any Buyer Indemnitee. Promptly on a Buyer Indemnitee's request Vendor will defend the Buyer Indemnitees against such claims, actions, proceedings and litigation and further pay any and all such losses, liabilities, costs, and expenses arising from any such claim, demand, action, proceeding, litigation, or settlement relating thereto. In no event shall the Parties be liable to the other Party or any third party for any indirect, incidental, or consequential, punitive, or any other damages of any kind including, but not limited to, business interruption, loss of customers, loss of data, loss of or damage to reputation or goodwill, loss or liability under or in relation to any other contract, lost revenues, profits, opportunity or anticipated savings and any indirect or consequential loss or damage, for any matter arising out or in connection with the performance or non-performance of the Agreement, whether such liability is asserted on the basis of contract, tort, products liability, damagenegligence, cost statute or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from otherwise at law, even if a material violation of this Agreement by the Indemnitor or violation Party has been advised of the standard possibility of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementsuch damages.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 4 contracts
Sources: Purchase Agreement, Purchase Agreement, Purchase Agreement
Indemnity. (a) In Except with respect to third party claims the subject of this Section, neither Party shall be liable to the other in contract, tort, negligence, breach of statutory duty or otherwise for any threatenedloss, pending damage, costs or completed actionexpenses of any nature whatsoever incurred or suffered by the other or its Affiliates of a direct nature where the same is a loss of turnover, suitprofits, business or proceeding to goodwill; or an indirect or consequential or punitive nature, including any indirect or consequential economic loss or other indirect or consequential loss of turnover, profits, loss of enterprise value, business or goodwill or otherwise.
(b) AMT shall indemnify, defend and hold ST. JUDE, the American Lebanese Syrian Associated Charities, Inc. (ALSAC; a non-profit, 501(c)(3) corporation which Collateral Subadvisorsupports ST. JUDE), its shareholderstheir present and former trustees, directors, governors, officers, directorsagents, faculty, employees or associated persons and students (collectively, “its affiliatesthe Indemnitees”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates harmless as against any lossclaims, liabilitydemands, damagedamages, costjudgments, expenses fees (including attorneys’ fees and accountants’ reasonable attorneys fees), judgments expenses, or other costs arising from or incidental to any product liability or other lawsuit, claim, demand or other action brought by a third party as a consequence of the use of clinical data provided by ST. JUDE, the practice of the Patent Rights or the sale of Licensed Products by AMT or Sublicensees, whether or not ST. JUDE, either jointly or severally, is named as a party defendant in any such lawsuit and amounts paid in settlement actually and reasonably incurred by it whether or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed not ST. JUDE is alleged to be in negligent or otherwise responsible for any injuries to persons or property. Such indemnity shall not opposed extend to the best interests of the Fundany claims, and provided that its conduct does not constitute willful misfeasancedemands, bad faith damages, judgments, fees (including reasonable attorneys fees), expenses, or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and other costs to the extent that the person same are determined to be the result of the willful misconduct of ST. JUDE, the American Lebanese Syrian Associated Charities, Inc., their present and former trustees, directors, governors, officers, agents, faculty, employees or students Practice of the Patent Rights or sale of Licensed Products by an Affiliate of AMT or an agent or a Sublicensee or a third party on whose behalf such expenses are paid of or for the account of AMT or by a third party who purchases Licensed Product(s) from AMT, shall agree be considered AMT’s practice of said Patent Rights for purposes of this Section. The obligation of AMT to reimburse defend, indemnify and hold harmless as set out in this Section shall survive the Fund and/or Managertermination of this Agreement, as applicableshall continue even after assignment of rights and responsibilities to an Affiliate or Sublicensee, and shall not be limited by any other limitation of liability elsewhere in this Agreement.
(c) In the event indemnification that it is ultimately determined that AMT is not permitted under this Section 12.
c) Collateral Subadvisor agrees obligated to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) Indemnitees as against any lossclaims, liabilitydemands, damagedamages, costjudgments, fees (including reasonable attorneys fees), expenses, or other costs, the Indemnitees shall reimburse AMT for any and all costs and expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountantslawyers’ fees) incurred by the Indemnitee AMT in connection its defense with such settlement respect to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementIndemnitees.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 4 contracts
Sources: Exclusive License Agreement (uniQure N.V.), Exclusive License Agreement (uniQure B.V.), Exclusive License Agreement (uniQure B.V.)
Indemnity. a) In Subject to Section 9.7, except to the extent caused by the negligence or willful misconduct of Landlord or any threatenedof its employees, pending officers, contractors or completed actionagents, suitTenant shall defend with counsel approved by Landlord in Landlord’s reasonable discretion (Landlord acknowledging that counsel appointed by Tenant’s insurer is acceptable), or proceeding to which Collateral Subadvisorindemnify and hold harmless Landlord, its shareholdersaffiliates, and their respective employees, officers, directors, employees or associated persons (collectivelypartners, “its affiliates”) was or is a party or is threatened to be made a party by reason members and shareholders, the property manager, and Mortgagees of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseProperty, the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all liabilities, liabilitylosses, damagedamages, costcosts, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ fees and accountants’ feesexpenses), causes of action, suits, claims, demands or judgments of any nature arising from or with respect to (a) incurred any injury to or death of any person or damage to or loss of property in or on the Premises or connected with the use, condition or occupancy of any thereof, (b) any act, omission, fault, misconduct, negligence or violation of applicable laws and regulations by Tenant or any Tenant Parties, including without limitation on account of any construction or other work by Tenant on or about the Indemnitee Premises pursuant to Article 8 or otherwise, or (c) any Hazardous Substances or other pollutants brought, generated, stored, used, installed, disposed of, spilled, released, emitted or discharged on, in connection with such settlement or from the Premises or the Property, or allowed, permitted or suffered to be brought, generated, stored, used, installed, disposed of, spilled, released, emitted or discharged thereon, therein or therefrom, by Tenant or any Tenant Parties, in violation of Section 7.6 or otherwise. Subject to Section 9.7, except to the extent such lossresulting from the negligence or willful misconduct of Tenant or any person claiming by, liabilitythrough, damageor under Tenant, cost or expense Landlord shall defend with counsel approved by Tenant in Tenant’s reasonable discretion (Tenant acknowledging that counsel appointed by Landlord’s insurer is acceptable), indemnify and hold harmless Tenant, all employees, officers, directors, partners, members and shareholders of Tenant from and against any and all liabilities, losses, damages, costs, expenses (including reasonable attorneys’ fees and accountants’ fees) was caused by expenses), causes of action, suits, claims, demands or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event judgments of any liability accruing nature arising from or with respect to the extentLandlord’s or any of Landlord’s employees’, if anyofficers’, caused by contractors’, or based upon Collateral Subadvisor’s misrepresentations, omissions agents’ negligence or breach of any warranty willful misconduct resulting in this Agreementpersonal injury or bodily harm.
Appears in 3 contracts
Sources: Lease Agreement (Codiak BioSciences, Inc.), Lease Agreement (Codiak BioSciences, Inc.), Lease Agreement (Codiak BioSciences, Inc.)
Indemnity. a) In Borrower agrees to indemnify the L/C Issuer and each of its correspondents and hold them harmless from and against any threatenedand all claims, pending damages, losses, liabilities, penalties, actions, judgments, suits, costs, expenses and reasonable out-of-pocket expenses whatsoever which they may incur or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party suffer by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with the execution and delivery or assignment of or payment or presentation under any action, suit Letter of Credit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed any action taken or omitted to be in or not opposed taken with respect to the best interests any Letter of the FundCredit, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, except only if and to the extent that any such claims, damages, losses, liabilities, penalties, actions, judgments, suits, costs, expenses or disbursements shall be caused by the person on whose behalf willful misconduct or gross negligence of the L/C Issuer as determined by a final non-appealable order of a court of competent jurisdiction or such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, correspondent in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) making payment against any lossdraft presented under any Letter of Credit which does not comply with the term thereof, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid or in settlement actually and reasonably incurred by it or its affiliates by reason of failing to make payment against any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated drafts which complies with the terms of this Agreement such Letter of Credit (it being understood that (x) in making such payment, the L/C Issuer’s or involved willful misfeasance, bad such correspondent’s exclusive reliance in good faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations documents presented to and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall believed to be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred genuine by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms of such Letter of Credit as to any and conditions all matters set forth therein, including without limitation, reliance in good faith on any affidavit presented pursuant to such Letter of the proposed settlement or the Indemnitee may refuse to settle the matter Credit and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be on the amount of said proposed settlement.
gany sight draft presented pursuant to any Letter of Credit whether or not any statement or any other document presented pursuant to such Letter of Credit proves to be forged, fraudulent, invalid or insufficient in any respect or any statement therein proves to be untrue or inaccurate in any respect whatsoever, and (y) any such noncompliance in a nonmaterial respect shall, in each case, not be deemed willful misconduct or gross negligence of the L/C Issuer or such correspondent). Upon written demand accompanied by reasonable documentation with respect to any reimbursement, indemnification or any other amount under this Section 2.4(g), upon request by the L/C Issuer or such correspondent at any time, Borrower shall reimburse the L/C Issuer or such correspondent for reasonable out-of-pocket charges and disbursements of outside legal counsel. The foregoing provisions for indemnification indemnities contained herein shall survive the expiration or termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in Letters of Credit and this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable payable upon demand. The L/C Issuer shall return such funds paid by Borrower under this Section 2.4(g) in the event such claims, damages, losses, liabilities, penalties, actions, judgments, suits, costs, expenses and disbursements arise as a consequence of any liability accruing to the extent, if any, caused willful misconduct or gross negligence of the L/C Issuer as determined by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach a final non-appealable order of any warranty in this Agreementa court of competent jurisdiction.
Appears in 3 contracts
Sources: Loan and Security Agreement (WireCo WorldGroup Poland Holdings Sp. z.o.o.), Loan and Security Agreement (1295728 Alberta ULC), Loan and Security Agreement (1295728 Alberta ULC)
Indemnity. (a) In any threatened, pending or completed action, suit, or proceeding to which Collateral SubadvisorLicensee shall at all times (both during and after the term hereof) indemnify and hold harmless Licensor, its shareholdersagents and employees, officersagainst and from any and all actions, directorssuits, employees liabilities, settlements, losses, damages, costs, charges, reasonable counsel fees and all other expenses, relating to or associated persons arising from any and all claims (whether founded or unfounded) of every nature or character (including, but without limitation, claims for personal injury, death, libel, slander, false arrest, detention or accusation, malicious prosecution, abuse of process, assault and battery, damage to property or invasion or infringement of any patent, trademark, copyright, right of privacy or any other tangible or intangible personal or property right) (collectively, “its affiliates”) was "Losses"), based upon or is a party or is threatened to be made a party by reason arising out of Licensee's operation of the fact that Collateral Subadvisor is Departments, or was an investment adviser the Licensee's sale, use or installation of the Fund Wares and Services, or otherwiseany defect in the Wares and Services or in any ingredient, product or component used in the Fund Wares and ManagerServices (or, jointly in the event the Wares and severallyServices shall be a service, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ feesused in the performance of such service), judgments or due to any negligence or dishonesty of, or to any act of commission or omission by, Licensee or any of its employees or agents, all except to the extent such Loss is caused by Licensor's negligent actions or omissions or willful misconduct; and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with case any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to shall at any time (either during or after the term hereof) be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination brought against Licensor by reason of any actionsuch claim, suit or proceeding by judgmentthe Licensee, order or settlement if Licensor so requests, shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith resist and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of defend such action, suit or proceeding, if at the sole expense of Licensee, by reputable counsel.
(b) Licensor shall at all times (both during and after the term hereof) indemnify and hold harmless Licensee, its agents and employees, against and from any and all Losses, based upon or arising out of Licensor's operations, or the Licensor's sale, use or installation of any products or services (other than the Wares or Services), or any defect in any product or service rendered by Licensor (other than the Wares or Services) or in any ingredient, product or component used in such products or services(other than the Wares or Services), or due to any negligence or dishonesty of, or to any act of commission or omission by, Licensor or any of its employees or agents, all except to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, Loss is caused by Licensee's negligent actions or omissions or willful misconduct; and in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection shall at any time (aeither during or after the term hereof) or (c) above, or in defense be brought against Licensee by reason of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute Licensor, if Licensee so requests, shall resist and defend such action, suit or litigation by such other partyproceeding, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf at the sole expense of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claimLicensor, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimreputable counsel.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: License Agreement (Cpi Corp), License Agreement (Cpi Corp), License Agreement (Cpi Corp)
Indemnity. a) In any threatenedEach Borrower hereby agrees to indemnify, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, pay and hold harmless Administrative Agent and Lenders and the officers, directors, employees or associated persons employees, trustees, agents, investment advisors, collateral managers, servicers, and counsel of Administrative Agent and Lenders (collectively, “its affiliates”collectively called the "Indemnitees") was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitee) in connection with any actioninvestigative, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundresponse, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilremedial, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit judicial matter or proceeding, if whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by Administrative Agent or Lenders) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby or by the other Financing Documents (including (a)(i) as a direct or indirect result of the presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from, any property now or previously owned, leased or operated by any Borrower, or any other Person of any Hazardous Materials or any Hazardous Materials Contamination, (ii) arising out of or relating to the extent that offsite disposal of any materials generated or present on any such property or (iii) arising out of or resulting from the person on whose behalf environmental condition of any such expenses are paid shall agree property or the applicability of any governmental requirements relating to reimburse the Fund and/or ManagerHazardous Materials, as applicablewhether or not occasioned wholly or in part by any condition, in the accident or event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred caused by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund any Borrower, (including costs b) proposed and expenses actual extensions of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties credit under this Agreement) and the use or intended use of the proceeds of the Loans and (c) any brokerage claims in connection with the sale or any leasing of any Project, except that no Borrower shall have any obligation hereunder to an Indemnitee with respect to any liability resulting from the gross negligence or willful misconduct of such Indemnitee, as determined by reason a final non-appealable judgment of its reckless disregard a court of its obligations and duties under this Agreement.
d) Any indemnification under subsections competent jurisdiction or for any liability with respect to clauses (a) or (c) above, unless ordered by first occurring after transfer of title of a court Project following a foreclosure or administrative forum, shall be made only as authorized pursuant to a conveyance in the specific case and only upon a determination by independent legal counsel in a written opinion lieu of foreclosure provided that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard Borrower is no longer in possession of conduct set forth in subsection (a) or (c), as the case may beapplicable Project. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise undertaking set forth in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) may be unenforceable, each Borrower shall not apply contribute the maximum portion which it is permitted to pay and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated satisfy under applicable law to the Fund’s business, payment and if the Fund or Manager are made a party to satisfaction of all such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit and Security Agreement (American Retirement Corp), Credit and Security Agreement (American Retirement Corp), Credit and Security Agreement (American Retirement Corp)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor Borrower hereby agrees to indemnify, defend and hold harmless Lender and its successors and assigns and the Fundrespective agents, Manager and Manager’s membersaffiliates, officers, directors, directors and employees or associated persons (collectively, “of Lender and its affiliates”) successors and assigns from and against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any all claims, demand or suit losses, demands, actions, causes of action and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses liabilities whatsoever (including reasonable attorneys’ fees and accountants’ feesexpenses and costs and expenses reasonably incurred in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character) incurred by arising out of or resulting from: (a) the Indemnitee in connection with such settlement Loan Documents (including the enforcement thereof), except to the extent such lossclaims, liabilitylosses and liabilities are proximately caused by Lender’s gross negligence, bad faith or willful misconduct, (b) any violation of any Applicable Environmental Law, (c) any act, omission, event or circumstance resulting from or in connection with the ownership, construction, occupancy, operation, use and/or maintenance of the Oil and Gas Properties, regardless of whether the act, omission, event or circumstance constituted a violation of any Applicable Environmental Law at the time of its existence of occurrence, and (d) any and all claims or proceedings (whether brought by a private party or governmental agencies) for bodily injury, property damage, cost abatement or expense remediation, environmental damage or impairment or any other injury or damage resulting from or relating to any hazardous or toxic substance, solid waste or contaminated material located upon or migrating into, from or through any of the Oil and Gas Properties (including reasonable attorneys’ and accountants’ fees) whether or not the release of such materials was caused by Borrower, a tenant or resulted from subtenant or a prior owner, tenant or subtenant on the Oil and Gas Properties and whether or not the alleged liability is attributable to the handling, storage, generation, transportation, removal or disposal of such substance, waste or material violation or the mere presence of this Agreement by such substance, waste or material on the Indemnitor or violation Oil and Gas Properties), for which Lender may have liability due to the making of the standard of conduct set forth herein. Notwithstanding the foregoingLoan, the Indemnitor shallgranting of the Security Documents, at all timesthe exercise of Lender’s rights under the Loan Documents or Otherwise. WITHOUT LIMITATION, have the right IT IS THE INTENTION OF BORROWER, AND BORROWER AGREES, THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY WITH RESPECT TO CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY OTHER) INDEMNIFIED PARTY. However, such indemnities shall not apply to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor particular indemnified party (but shall apply to the Indemnitee, other indemnified parties) to the Indemnitee must either use its best efforts to dispose extent the subject of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, is caused by or based arises out of the gross negligence, bad faith or willful misconduct of such particular indemnified party. The foregoing indemnities shall not terminate upon Collateral Subadvisor’s misrepresentationsthe Maturity Date or upon the release, omissions foreclosure or breach other termination of any warranty the Security Documents, but will survive the Maturity Date, foreclosure of the Security Documents or conveyances in this Agreementlieu of foreclosure, and the repayment of the Loan and the discharge and release of the Security Documents and the other documents evidencing and/or securing the Loan.
Appears in 3 contracts
Sources: Credit Agreement (Recovery Energy, Inc.), Credit Agreement (Recovery Energy, Inc.), Credit Agreement (Recovery Energy, Inc.)
Indemnity. aThe Borrower shall indemnify the Bank against all losses, damages, claims, costs (including funding costs), expenses, charges, proceedings and all other liabilities whatsoever including legal costs (on a full indemnity basis) In (other than those arising out of gross negligence or fraud of the Bank)which the Bank may incur as a result of (i) anything lawfully done by the Bank when acting within the terms of any threatenedLoan granted to the Borrower or any failure by the Borrower to perform or observe any of his or its obligations under any Loan granted and against all the consequences of breach of any of the term, pending conditions, statements, undertaking, representations, guaranties etc. of the Loan Documents as also of any of its representations or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened warranties not being found to be made a party true, any breach of trust or other fiduciary obligation binding on the Borrower; (ii) in relation to any litigation from the Borrower or any third party/Person in relation to the Loan; (iii) any draft, cheque, promissory note, bill of exchange and other order for payment is or may be payable including, without limitation, each claim and liability arising or incurred by reason of the fact that Collateral Subadvisor is Bank's endorsement on such item, or was an investment adviser of the Fund whether arising or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act forgery thereof or omission of Collateral Subadvisor relating to the Fund unauthorised signatures thereon or otherwise; (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ feesiv) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and penalties with respect to or resulting from delay or omissions to pay any amounts awarded to such other party. If any claimstamp, dispute registration and similar taxes or litigation arises between the Fund and/or Manager and any party charges (other than Collateral Subadvisor which claimthose arising out of gross negligence, dispute wilful misconduct or litigation is unrelated fraud of the Bank). Such stamp, registration and similar taxes or charges (if not paid or reimbursed by the Borrower) shall be deemed to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, be the Fund and/or Manager, jointly and severally, shall defend any actions brought amounts due under/in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse relation to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimLoan.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Master Facility Agreement, Master Facility Agreement, Master Facility Agreement
Indemnity. a) In any threatenedThe Borrower agrees to defend, pending or completed actionprotect, suit, or proceeding to which Collateral Subadvisor, indemnify and hold harmless the Agent and each Lender and each and all of its shareholders, officers, directors, employees or associated persons employees, attorneys and agents (collectively, “its affiliatesIndemnified Parties”) was from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (including, without limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for the Indemnified Parties in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or judicial proceeding, if and to whether or not the extent that the person on whose behalf such expenses are paid Indemnified Parties shall agree to reimburse the Fund and/or Managerbe designated by a party thereto), as applicablewhich may be imposed on, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnifyincurred by, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) asserted against any lossIndemnified Party (whether direct, liabilityindirect or consequential and whether based on any federal or state laws or other statutory regulations, damageincluding, costwithout limitation, expenses (including attorneys’ fees securities, environmental and accountants’ fees)commercial laws and regulations, judgments and amounts paid under common law or at equitable cause, or on contract or otherwise) in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor manner directly relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms arising out of this Agreement or involved the other Financing Agreements, or any act, event or transaction related or attendant thereto, the making and the management of the Term Loan (including, without limitation, any liability under federal, state or local environmental laws or regulations) or the use or intended use of the proceeds of the Term Loan hereunder; provided, that the Borrower shall not have any obligation to any Indemnified Party hereunder with respect to matters caused by or resulting from the willful misfeasance, bad faith misconduct or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may besuch Indemnified Party. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to preceding sentence may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partypublic policy, the Fund and/or ManagerBorrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified all matters incurred by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgmentsIndemnified Parties. Any liability, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; providedobligation, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damagepenalty, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement incurred by the Indemnitor or violation Indemnified Parties shall be paid to the Indemnified Parties within five (5) days of demand, together with interest thereon at the Default Rate from the date incurred by the Indemnified Parties until paid by the Borrower, be added to the Liabilities, and be secured by the Collateral. The provisions of and undertakings and indemnifications set out in this Section 11.16 shall survive the satisfaction and payment of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose Liabilities of the matter in accordance with the terms Borrower and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Term Loan and Security Agreement (Strawberry Fields REIT, Inc.), Term Loan and Security Agreement (Strawberry Fields REIT, Inc.), Term Loan and Security Agreement (Strawberry Fields REIT, Inc.)
Indemnity. aIn addition to the payment of expenses pursuant to Section 8.1 hereof, and irrespective of whether the transactions contemplated hereby are consummated, Borrower agrees to indemnify, exonerate, defend, pay, and hold harmless the Agent-Related Persons, and the Lender-Related Persons (collectively the “Indemnitees” and individually as “Indemnitee”) In from and against any threatenedand all liabilities, pending obligations, losses, damages, penalties, actions, causes of action, judgments, suits, claims, costs, expenses, and disbursements of any kind or completed nature whatsoever (including, the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigation, administrative, or judicial proceeding, whether such Indemnitee shall be designated a party thereto), that may be imposed on, incurred by, or asserted against such Indemnitee, in any manner relating to or arising out of this Agreement or any other Loan Document, the use or intended use of the proceeds of the Loans or the consummation of the transactions contemplated by this Agreement, including any matter relating to or arising out of the filing or recordation of any of the Loan Documents which filing or recordation is done based upon information supplied by Borrower to Agent and its counsel (provided, that the indemnification described herein shall not extend to disputes solely between or among the Lenders that do not involve any acts or omissions of Borrower, it being understood and agreed that the indemnification described herein shall extend to Agent (but not the Lenders) relative to disputes between or among Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand) (the “Indemnified Liabilities”); provided, however, that Borrower shall have no obligation hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of any such Indemnitee or a material breach by such Indemnitee of the express provisions of this Agreement. Each Indemnitee will promptly notify Borrower of each event of which it has knowledge which may give rise to a claim under the indemnification provisions of this Section 8.2. If any investigative, judicial, or administrative proceeding arising from any of the foregoing is brought against any Indemnitee indemnified or intended to be indemnified pursuant to this Section 8.2, Borrower, will resist and defend such action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened cause the same to be made a party resisted and defended by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, counsel designated by Borrower (which counsel shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and be reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed satisfactory to the best interests of Indemnitee or intended Indemnitee). Each Indemnitee will use its reasonable efforts to cooperate in the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination defense of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit writ, or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) abovepay, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless set forth in the Fund preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall make the maximum contribution to the payment and Manager from and with respect to any amounts awarded to such other partysatisfaction of each of the Indemnified Liabilities that is permissible under applicable law. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties The obligations of Borrower under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Section 8.2 shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event discharge of any liability accruing to the extent, if any, caused by or based upon Collateral SubadvisorBorrower’s misrepresentations, omissions or breach of any warranty in this Agreementother obligations hereunder.
Appears in 3 contracts
Sources: Credit Agreement (JMP Group LLC), Credit Agreement (JMP Group LLC), Credit Agreement (JMP Group Inc.)
Indemnity. a) In any threatenedThe Borrower agrees to pay, pending or completed actionindemnify, suit, or proceeding to which Collateral Subadvisor, its shareholders, and hold each Lender and the Administrative Agent and their respective officers, directors, employees or associated persons employees, advisors, affiliates and agents (collectivelyeach, an “its affiliatesIndemnitee”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (whether brought by a Borrower or any other Person) with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Term Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Group Member or any of the Properties (provided that such liability was incurred during such time as a Group Member controlled such Properties) and the reasonable documented or invoiced fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against the Borrower under any Loan Document or any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party or is threatened to be made a party by reason of thereto (all the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseforegoing in this clause (b), collectively, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees“Indemnified Liabilities”), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection provided, that the Borrower shall have no obligation hereunder to any Indemnitee with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed respect to be in or not opposed Indemnified Liabilities to the best interests extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard willful misconduct of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor such Indemnitee or its affiliates mayaffiliates. Without limiting the foregoing, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that permitted by applicable law, the person on whose behalf such expenses are paid shall agree Borrower agrees not to reimburse the Fund and/or Managerassert and to cause its Subsidiaries not to assert, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor and hereby waives and agrees to indemnifycause its Subsidiaries to waive, defend and hold harmless the Fundall rights for contribution from any Indemnitee or any other rights of recovery from any Indemnitee with respect to all claims, Manager and Manager’s membersdemands, officerspenalties, directorsfines, employees or associated persons (collectivelyliabilities, “its affiliates”) against any losssettlements, liabilitydamages, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending whatever kind or nature, under or related to Environmental Laws, that any claims, demand of them might have by statute or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties otherwise against any Indemnitee. All amounts due under this AgreementSection 11.5 shall be payable not later than 10 Business Days after written demand therefor and shall be accompanied by a statement setting forth in reasonable detail the source of such Indemnified Liability and the amount claimed thereunder. Statements payable by the Borrower pursuant to this Section 11.5 shall be submitted to the Borrower, at the address of the Borrower set forth in Section 11.2, or to such other Person or address as may be hereafter designated by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel Borrower in a written opinion that indemnification is proper notice to the Administrative Agent. The agreements in this Section 11.5 shall survive repayment of the circumstances because the party claiming indemnification Term Loans and all other amounts payable hereunder. Paragraph (the “Indemnitee”b) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) Section shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party Taxes other than Collateral Subadvisor which claimany Taxes that represent losses, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreementclaims, and if Collateral Subadvisor is made a party to such claimdamages, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend etc. arising from any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such non-Tax claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Aspen Insurance Holdings LTD), Term Loan Credit Agreement (Aspen Insurance Holdings LTD), Term Loan Credit Agreement (Aspen Insurance Holdings LTD)
Indemnity. aWhether or not the transactions contemplated hereby shall be consummated, Borrower agrees to defend, protect and indemnify Lender, its participants and each of their assigns, and each of their respective directors, officers, employees, affiliates and agents (collectively, “Indemnified Persons”) In from and against, and agrees to hold each such Indemnified Person harmless from, any threatenedand all losses, pending or completed claims, damages, obligations, judgments, penalties, and liabilities and related costs and expenses, including, without limitation, reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, action, suit, litigation, investigation or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees (whether or associated persons (collectively, “its affiliates”) was or not such Indemnified Person is a party thereto), which may be imposed on, incurred by, or is threatened asserted against any Indemnified Person (whether direct, indirect or consequential and whether based on any federal or state laws or other statutory regulations, including, without limitation, securities, environmental and commercial laws and regulations, under common law or in equity, or in contract or otherwise) in any manner relating to be made a party by reason or arising out of this Agreement, the Related Documents, or any act, event or transaction related or attendant hereto or thereto, the making and the management of the fact that Collateral Subadvisor is Loan or was an investment adviser the use or intended use of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests proceeds of the FundLoan hereunder; provided, and provided however, that its conduct does such indemnity shall not constitute willful misfeasanceapply to any such losses, bad faith claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence or reckless disregard wilful misconduct of its obligations and duties such Indemnified Person. The agreements of Borrower in this subsection shall be in addition to any of the Indebtedness that Borrower may otherwise have. All amounts due under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement subsection shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses payable as incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, upon written demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forumtherefor, shall be made only as authorized in added to the specific case Indebtedness of the Borrower and only upon a determination shall bear interest at the Default Rate, and shall be secured by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may beCollateral. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless the Fund and Manager from and with respect to set forth in this subsection may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partypublic policy, the Fund and/or ManagerBorrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all matters incurred by the Indemnitee Indemnified Persons. The provisions of and undertakings and indemnifications set out in connection with such settlement to this Section shall survive the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ satisfaction and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation payment of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose Indebtedness of the matter in accordance with the terms Borrower and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Business Loan Agreement (NANOPHASE TECHNOLOGIES Corp), Business Loan Agreement (NANOPHASE TECHNOLOGIES Corp), Business Loan Agreement (NANOPHASE TECHNOLOGIES Corp)
Indemnity. The Grantee must indemnify and keep the Trust and its agents, employees and officers indemnified against:
(a) In any threatenedall liabilities, pending costs, damages and expenses relating to the Project that may be incurred by the Trust or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directorsagents, employees or associated persons officers (collectivelyincluding, “its affiliates”without limitation, liability or damages arising from environmental damage) was as a consequence of any negligent or is a party wrongful act or is threatened to be made a party by reason omission of the fact that Collateral Subadvisor is Grantee or was an investment adviser of any agent, employee, contractor, associate or officer of the Fund Grantee; and
(b) unless otherwise agreed in writing between the parties, all liabilities, costs, damages and expenses that may be incurred by the Trust or otherwiseits agents, employees or officers (including, without limitation, liability or damages arising from environmental damage) as a consequence of any commercialisation or exploitation of any Intellectual Property by the Fund Grantee or of any agent, employee, contractor, associate or officer of the Grantee;
(c) without limitation to paragraphs (a) and Manager(b), jointly all legal costs (on a solicitor/solicitor basis) and severallyother costs incurred in defending any action or claim relating to the Project brought against the Trust or its agents, shall indemnify and hold harmlessemployees or officers as a consequence of any act or omission, subject to subsection or alleged negligent or wrongful act or omission of the Grantee or of any agent, employee, contractor, associate or officer of the Grantee.
(d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid The Grantee’s liability under the indemnity in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to this clause 14 will be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and reduced proportionately to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission (whether negligent or not) of Collateral Subadvisor relating the Trust or it’s agents, employees, contractors, and associates or officers (not being the Grantee) contributed to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, relevant liability, damagecost, cost damage or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Funding Agreement, Funding Agreement, Funding Agreement
Indemnity. a) In Whether or not the transactions contemplated hereby shall be consummated, each Company agrees to indemnify, pay and hold harmless the Agent and each Lender and any threatenedsubsequent holder of any of the Notes, pending Letter of Credit Liabilities or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, Lender Interest and the officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason and agents of the fact that Collateral Subadvisor is or was an investment adviser of Agent, each Lender and such holders (collectively called the Fund or otherwise, the Fund "Indemnitees") from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitee) in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding, suit whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of such Company or any of its Subsidiaries or Holdings, and the expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by NationsCredit) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against Collateral Subadvisor such Indemnitee as a result of or its affiliates may, in connection with the sole discretion of Manager, be paid transactions contemplated hereby or by the Fund and/or Manager in advance other Operative Documents (including (i)(A) as a direct or indirect result of the final disposition presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from, any property now or previously owned, leased or operated by such Company or any of such actionits Subsidiaries of any Hazardous Materials or any Hazardous Materials Contamination, suit (B) arising out of or proceeding, if and relating to the extent that offsite disposal of any materials generated or present on any such property or (C) arising out of or resulting from the person on whose behalf environmental condition of any such expenses are paid shall agree property or the applicability of any governmental requirements relating to reimburse the Fund and/or ManagerHazardous Materials, as applicablewhether or not occasioned wholly or , in the accident or event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred caused by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending such Company or any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties Subsidiaries, and (ii) proposed and actual extensions of credit under this Agreement) and the use or intended use of the proceeds of the Notes, the Letters of Credit and the Lender Interest, except that such Company shall have no obligation hereunder to an Indemnitee with respect to any liability resulting from the gross negligence or by reason wilful misconduct of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “such Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise undertaking set forth in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence may be unenforceable, each Company shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of them. Without limiting the generality of any provision of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expensesSection, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s businessfullest extent permitted by law, and if the Fund each Company hereby waives all rights for contribution or Manager are made a party to such claim, dispute or litigation by such any other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf rights of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and recovery with respect to liabilities, losses, damages, costs and expenses arising under or relating to Environmental Laws that it might have by statute or otherwise against any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimIndemnitee.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Lets Talk Cellular & Wireless Inc), Credit Agreement (Lets Talk Cellular & Wireless Inc), Credit Agreement (Lets Talk Cellular & Wireless Inc)
Indemnity. a) In any threatenedThe Company and Uptick agrees to indemnify, pending or completed actiondefend, suitand hold harmless each other and its affiliates, or proceeding to which Collateral Subadvisor, its shareholdersdirectors, officers, directorscounsel, employees employees, agents, members, managers, successors, assigns, and controlling persons (as defined in the Act) (each, an “Indemnified Party”) from and against any and all losses, claims, damages, costs, expenses, and liabilities (including any investigatory, legal, and other expenses incurred as they are incurred by an Indemnified Party in connection with preparing for or associated persons defending any action, claim, or proceeding, whether or not resulting in any liability) (collectively, “its affiliatesIndemnifiable Losses”) was to which any Indemnified Party may become subject or is a party liable relating to or is threatened arising out of (a) the Agreement or the services to be made a party by reason performed under the Agreement or any agreement between the parties to this Agreement, (b) any transactions referred to in the Agreement or any transactions arising out of the fact that Collateral Subadvisor is transactions contemplated by the Agreement, (c) any inaccuracy in or was an investment adviser breach in the representations and warranties of the Fund or otherwiseCompany contained in this Agreement, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) belowany failure of the Company to perform its obligations under this Agreement, Collateral Subadvisor provided that the Company and its affiliates against Uptick shall not be liable to an Indemnified Party in any losssuch case to the extent that any such Indemnifiable Loss is found in a final, liabilitynonappealable judgment by a court of competent jurisdiction to have resulted as a direct and proximate cause from the willful misconduct or gross negligence of an Indemnified Party. No Indemnified Party shall be liable, damageresponsible, cost, or accountable in damages and costs and expenses (including attorneys’ fees fees) under this Agreement except for any liability for losses, claims, damages, or liabilities finally judicially determined to have resulted solely and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it exclusively from actions taken or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed omitted to be in or not opposed to the best interests taken as a direct result of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or such Indemnified Party’s gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fundwillful misconduct.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Consulting Agreement (Nutrafuels Inc), Consulting Agreement (Nutrafuels Inc), Consulting Agreement (Nutrafuels Inc)
Indemnity. (a) In any threatenedTo the fullest extent allowed by law, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, Tenant shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to at all times indemnify, defend and hold Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from the Fundconduct or management, Manager or from any work or things whatsoever done in or about the Demised Premises, and Manager’s memberswill further indemnify, officersdefend and hold Landlord harmless against and from any and all claims arising during the term of this Lease, directorsor arising from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed, pursuant to the terms of this Lease, or arising from, any act or negligence of Tenant, its agents, servants, employees or associated persons (collectivelylicensees, “its affiliates”) or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in or about the Demised Premises or upon the sidewalk and the land adjacent thereto, and from and against any lossall costs, liability, damage, costattorneys' fees, expenses (including attorneys’ fees and accountants’ fees), judgments liabilities incurred in or about any such claim or action or proceeding brought thereon; and amounts paid in settlement actually and reasonably incurred by it case any action or its affiliates proceeding be brought against Landlord by reason of any act such claim, Tenant, upon notice from Landlord, covenants to defend such action or omission proceeding by counsel reasonably satisfactory to Landlord. Tenant's obligations under this Paragraph 36 shall be insured by contractual liability endorsement on Tenant's policies of Collateral Subadvisor relating to insurance required under the Fund provisions of Paragraph 17 hereof.
(b) Landlord shall protect, indemnify and hold Tenant harmless from and against any and all loss, claims, liability or costs (including court costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ ' fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or incurred by reason of its reckless disregard of its obligations and duties under this Agreement.of:
d) Any indemnification under subsections (a) any damage to any property or any injury (cincluding but not limited to death) aboveto any person occurring in, unless ordered by a court or administrative forum, shall be made only as authorized in on or about the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in Demised Premises or the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To Building to the extent that such injury or damage shall be proximately caused by the Indemnitee Landlord's affirmative acts of negligence or willful misconduct of Landlord or its affiliates have been successful on the merits agents, servants or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitoremployees; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it indemnification shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement be limited to the extent of the sum of: (i) amounts of insurance proceeds recovered by Landlord under insurance policies carried by Landlord for such loss, liability, injury or damage, cost after deductibles, or expense insurance proceeds that would have been received in the event Landlord had not elected to self-insure, and (including reasonable attorneys’ and accountants’ feesii) was caused by or resulted from a material violation the deductible amounts for such claims under such insurance policies. The provisions of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Article shall survive the termination of this AgreementLease with respect to any claims or liability occurring prior to such termination.
h(c) Collateral Subadvisor acknowledges as Notwithstanding the foregoing indemnification obligations, Landlord and Tenant both hereby release the other and the other's officers, directors, partners, employees and agents from any claim which the indemnified party might have to it the extent that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event cost of any liability accruing to such claim is reimbursed by insurance proceeds recovered by the extentreleasing party, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreementand both Landlord and Tenant shall confirm that their insurance providers shall similarly waive all such claims.
Appears in 3 contracts
Sources: Sublease (R2 Technology Inc), Sublease Agreement (R2 Technology Inc), Sublease Agreement (Software Net Corp)
Indemnity. aEach Borrower hereby agrees to jointly and severally indemnify Agent, each Arranger and each Lender (and each of their Affiliates) In and hold Agent, each Arranger and each Lender (and each of their Affiliates) harmless from and against any threatenedliability, pending or completed actionloss, damage, suit, action or proceeding suffered or incurred by any such Person (including reasonable documented attorneys fees and legal expenses) as the result of such Borrower’s failure to which Collateral Subadvisorobserve, its shareholders, officers, directors, employees perform or associated persons discharge such Borrower’s duties hereunder (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d2.12) belowor arising from or relating to this Agreement, Collateral Subadvisor and its affiliates against any lossthe other Loan Documents or the transactions contemplated hereby or thereby, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred except those determined by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and a court of competent jurisdiction in a manner it reasonably believed final nonappealable judgment to be in or not opposed to the best interests have arisen out of the Fundbad faith, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard willful misconduct of, or breach of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasanceany other Loan Document by, bad faith Agent, either Arranger or gross negligence on such Lender. In addition, each Borrower shall defend Agent, each Arranger and each Lender (and each of their Affiliates) against and hold it harmless from all claims of any Person with respect to the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered except those determined by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel of competent jurisdiction in a written opinion that indemnification is proper in final nonappealable judgment to have resulted from the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) bad faith, gross negligence or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) aboveintentional misconduct of, or in defense breach of any claim, issue or matter therein, the immediately preceding sentence terms of this subsection (d) shall not apply and Agreement or any other Loan Document by, any such Person seeking indemnity). Without limiting the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf generality of the Fund and/or Manager foregoing, each of whom agree to cooperate in such defense and Collateral Subadvisor Borrower shall indemnify and hold harmless the Fund Agent, each Arranger and Manager each Lender (and each of their Affiliates) from and with respect against any loss, damage, cost, expense or liability directly or indirectly arising out of or under the Environmental Laws, or attributable to the use, generation, storage, release, threatened release, discharge, disposal or presence of any amounts awarded pollutants, flammables, explosives, petroleum (including crude oil) or any fraction thereof, radioactive materials, hazardous wastes, toxic substances or related materials, including, without limitation, any substances defined as or included in the definition of toxic or hazardous substances, wastes, or materials under any Environmental Law, except for those losses, damages, costs, expenses or liabilities determined by a court of competent jurisdiction in a final nonappealable judgment to have arisen out of the bad faith, gross negligence or willful misconduct of Agent, either Arranger or such other partyLender. If Notwithstanding any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under contrary provision in this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, obligation of each Borrower under this Section 12.2 shall defend any actions brought survive the payment in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests full of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim non-indemnity Obligations and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding The Company agrees to which Collateral Subadvisor, its shareholdersindemnify the Agent and each of the Banks and their respective directors, officers, directors, employees or associated persons and agents (collectively, “its affiliates”each such person being called an "Indemnitee") was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundagainst, and provided that its conduct does not constitute willful misfeasanceto hold each Indemnitee harmless from, bad faith or gross negligence or reckless disregard of its obligations any and duties under this Agreement. The termination of any actionall losses, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit damages and attorneys’ and accountants’ fees) if such act or omission materially violated the terms liabilities of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund Company and related expenses, including reasonable counsel fees and expenses incurred by or Managerasserted against any Indemnitee arising out of, which in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any Note or any agreement or instrument contemplated hereby or thereby, the performance by the parties thereto of their respective obligations hereunder or thereunder or the consummation of the transactions and the other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans or (iii) any claim, dispute litigation, investigation, or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and notwithstanding that any claim, proceeding, investigation or litigation relating to any such losses, claims, damages, liabilities or expenses is unrelated or was brought by a shareholder, creditor, employee or officer of the Company; provided that such indemnity shall not, as to any Indemnitee, be available to the Fund’s businessextent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and if nonappealable judgment to have resulted from the Fund gross negligence or Manager are wilful misconduct of any Indemnitee. The provisions of this Section 11.11 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the reduction or cancellation of the Commitment, the invalidity or unenforceability of any term or provision of this Agreement or any Note, or any investigation made a party to such claim, dispute by or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any Banks. All amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties due under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and Section 11.11 shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred payable in connection with investigating or defending such claimimmediately available funds upon written demand therefor.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Health Care Property Investors Inc), Revolving Credit Agreement (Health Care Property Investors Inc), Revolving Credit Agreement (Health Care Property Investors Inc)
Indemnity. (a) In any threatenedIndirect Parent, pending or completed actionSecond Intermediary Parent, suitFirst Intermediary Parent and Parent shall indemnify, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify defend and hold harmless, subject to subsection (d) below, Collateral Subadvisor the Purchaser from and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed respect of and shall be responsible for and shall timely pay or cause to be in paid (i) any and all Taxes whensoever arising with respect to or not opposed relating to the best interests of the Fund, and provided Company that its conduct does not constitute willful misfeasance, bad faith are attributable to any taxable period ending on or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed prior to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates mayClosing Date and, in the sole discretion case of Managera taxable period that includes, be paid by but does not end on the Fund and/or Manager in advance Closing Date, the portion of such taxable period that ends on the Closing Date, (ii) any and all Taxes of Parent, Indirect Parent or any subsidiaries or Affiliates thereof other than the Company, whensoever arising, regardless of the final disposition period to which such Taxes relate, imposed on the Company arising out of Treasury Regulation (S) 1.1502-6 or any comparable provision of foreign, state, local or subnational law or Taxes of such actionentities for which the Company is otherwise liable, suit (iii) any and all Taxes arising out of or proceedingconstituting a breach of any representation, if warranty, or covenant of the Parent, Second Intermediary Parent, First Intermediary Parent, Indirect Parent or the Company contained in this Article VIII (The foregoing items (i) through (iii) shall collectively be referred to herein as "Parent's Taxes"). Parent's Taxes shall include, with respect to any taxable period commencing before the Closing Date and ending after the Closing Date (a "Straddle Period"), all Taxes relating to the extent Company attributable to the portion of the Straddle Period prior to and including the Closing Date (the "Pre-Closing Period"). For purposes of such Straddle Periods, the portion of any Tax that is attributable to the person on whose behalf such expenses are paid Pre-Closing Period shall agree to reimburse the Fund and/or Manager, as applicable, be (i) in the event indemnification case of a Tax that is not permitted under this Section 12based on net income, gross income, sales, premiums or gross receipts, the total amount of such Tax for the period in question multiplied by a fraction, the numerator of which is the number of days in the Pre-Closing Period, and the denominator of which is the total number of days in such Straddle Period, and (ii) in the case of a Tax that is based on any of net income, gross income, sales, premiums or gross receipts, the Tax that would be due with respect to the Pre-Closing Period if such Pre-Closing Period were a separate taxable period, except that exemptions, allowances, deductions or credits, exclusive of the amount by which they are increased or decreased as a result of the transactions contemplated hereby, and which are calculated on an annual basis (such as the deduction for depreciation or capital allowances) shall be apportioned on a per diem basis.
c(b) Collateral Subadvisor agrees to Purchaser shall indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor Parent and its affiliates from and against and in respect of and shall be responsible for and shall timely pay or cause to be paid (i) any and all Taxes with respect to the Company, that are attributable to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), iftaxable period commencing after the Closing Date and, in the case of a Straddle Period, the portion of such taxable period that begins on the day after the Closing Date and all other Taxes imposed on the Company which are not Parent's Taxes ("Purchaser's Taxes") and (ii) any claim as losses incurred by Parent, Second Intermediary Parent, First Intermediary Parent or Indirect Parent attributable to a breach of any representation, warranty or covenant of Purchaser or Merger Sub contained in this Article VIII.
(c) If Purchaser or any Affiliate files any Return which indemnity is or may be availableincludes payment of Parent's Taxes, any indemnified party reasonably determines Parent, Second Intermediary Parent, First Intermediary Parent and Indirect Parent shall reimburse Purchaser for such Parent's Taxes within ten (10) days following written notice that its interests are or may be, in whole or in part, adverse payment of such amounts to the interests appropriate tax authority is due, provided that payment shall not be required earlier than two (2) days before it is due to the appropriate tax authority. If Parent, Second Intermediary Parent, First Intermediary Parent or Indirect Parent files any Return which includes payments of Purchaser's Taxes, Purchaser shall reimburse Parent, Second Intermediary Parent, First Intermediary Parent or Indirect Parent, as relevant, for such Purchaser's Taxes within ten (10) days following written notice that payment of such amounts to the indemnifying partyappropriate tax authority is due, provided that payment shall not be required earlier than two (2) days before it is due to the indemnified party may retain its own counsel appropriate tax authority. Parent, Second Intermediary Parent, First Intermediary Parent and Indirect Parent shall timely provide to Purchaser all information and documents within the possession of Parent, Second Intermediary Parent, First Intermediary Parent or Indirect Parent (or their auditors, advisors or Affiliates) and signatures and consents necessary for Purchaser to properly prepare and file the Returns described in the second preceding sentence or in connection with such claim and shall be indemnified by the indemnifying party for determination of any legal Tax liability or any other expenses reasonably incurred audit, examination or proceeding. Purchaser shall timely provide to Parent, Second Intermediary Parent, First Intermediary Parent and Indirect Parent all information and documents within its possession or the possession of its auditors, advisors or affiliates and signatures and consents necessary for Parent, Second Intermediary Parent, First Intermediary Parent and Indiredt Parent properly to prepare and file the Returns described in the second preceding sentence or in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any lossTax liability or any audit, liability, damage, cost examination or expenses proceeding. Each party hereto shall reasonably cooperate with the other (including reasonable attorneys’ at their own expense) party to obtain other information or documents necessary or appropriate to prepare and accountants’ fees) incurred by the Indemnitee file Returns or elections or necessary or appropriate in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event determination of any Tax liability accruing to the extentor any audit, if any, caused by examination or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreementproceeding.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Xenogen Corp), Agreement and Plan of Reorganization (Xenogen Corp), Agreement and Plan of Reorganization (Xenogen Corp)
Indemnity. a) In any threateneda. Buyer shall, pending or completed actionat Buyer’s sole cost and expense defend, suitindemnify and hold Seller and its parent, or proceeding to which Collateral Subadvisor, its shareholders, subsidiary and affiliated companies and their respective officers, directors, employees and agents (“Seller Indemnified Parties”) harmless from and against all third party claims, demands, suits, actions, proceedings and litigation, all direct losses, costs, damages, obligations, judgments, expenses and fees, including without limitation, reasonable attorneys’ fees and expenses (collectively “Losses”), suffered or associated persons incurred by a Seller Indemnified Party arising out of or in connection with Buyer’s use or any of its licensees’ use of the Marks pursuant to this Agreement and the subject matter hereof, including without limitation, those relating to: (i) the offer or sale of the Products using the Marks; (ii) injury to or death of any person or damage to any property whatsoever; (iii) the alleged or actual violation of applicable law or regulation regarding false and/or misleading advertising, fraud, unfair trade practices and/or anti-competitive practices, in relation to the operation of the Retail Station Business; (iv) the violation by Buyer or its licensees of any applicable law, regulation or industry standard; and/or (v) the alleged or actual violation of third party rights regarding the realization and/or the release of any advertising using the Marks during the Term; provided, however, in no event shall the foregoing indemnity extend to any Losses to the extent that they arise out of a breach of Seller’s express covenants, representations and warranties hereunder (collectively, “its affiliatesSeller’s Actions”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise).
b. Seller shall, the Fund at Seller’s sole cost and Managerexpense, jointly and severallydefend, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor Buyer and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees parent subsidiary and accountants’ fees), judgments affiliated companies and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, their respective officers, directors, employees or associated persons and agents (collectively, “its affiliatesBuyer Indemnified Parties”) harmless from and against all Losses arising out of or in connection with Seller’s Actions; provided however, in no event shall the foregoing indemnity extend to any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating Losses to the Fund (including costs and expenses of investigating and defending any claims, demand extent caused by Buyer’s negligence or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms by Buyer’s breach of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementlaw.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Petroleum Products Supply Agreement, Petroleum Products Supply Agreement (CST Brands, Inc.), Petroleum Products Supply Agreement (CST Brands, Inc.)
Indemnity. a) In any threatenedThe Tenant agrees, pending whether or completed actionnot the transactions contemplated by this Project Lease, suitthe Site Lease, the Bonds or proceeding the Bond Agreement are consummated, to which Collateral Subadvisorindemnify and hold harmless the Issuer and its officers, directors, officials, employees and agents, including the Bank as assignee of the Issuer's rights under this Project Lease, and the Owner and each of its shareholders, officers, directors, employees and agents (any or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason all of the fact that Collateral Subadvisor is foregoing referred to hereafter as "Indemnified Persons"), from and against all claims, actions, suits, proceedings, expenses, judgments, damages, penalties, fines, assessments, liabilities, charges or was an investment adviser of the Fund or otherwiseother costs (including, the Fund and Managerwithout limitation, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including all attorneys’ ' fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably expenses incurred by it or its affiliates in connection with enforcing this Project Lease or collecting any action, suit sums due hereunder and any claim or proceeding if Collateral Subadvisor acted or any investigations undertaken hereunder) relating to, resulting from, or in good faith and connection with (a) any cause in a manner it reasonably believed to be in connection with the Project, including, without limitation, the acquisition, design, construction, installation, equipping, operating, maintenance or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
use thereof; (b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending Tenant or any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreementagents contractors, servants, employees or by reason licensee in connection with the use or operation of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or the Project; (c) aboveany cause in connection with the issuance and sale of the Bonds, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and a misrepresentation or breach of warranty by the party obligated to indemnify Tenant hereunder or under any of the documents executed by the Tenant in connection with this Project Lease, or (e) any violation by the Tenant of any of its covenants hereunder or under any of the other party (documents executed by the “Indemnitor”) shall indemnify Tenant in connection with the Indemnitee Bonds or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably this Project Lease. This indemnity is effective only with respect to any loss incurred by it any Indemnified Person not due to willful misconduct, gross negligence, or its affiliates in connection therewith.
e) bad faith on part of such Indemnified Person. In the event that case any claim, dispute action or litigation arises between Collateral Subadvisor and any party other than the Fund proceeding shall be brought against one or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from more Indemnified Person and with respect to any amounts awarded which such Indemnified Person may seek indemnity as provided herein, such Indemnified Person shall promptly notify the Tenant in writing and the Tenant shall promptly assume the defense thereof, including the employment of counsel reasonable satisfactory to such other party. If Indemnified Person or Indemnified Persons, the payment of all expenses and the right to negotiate and consent to settlement; but the failure to notify the Tenant as provided shall not relieve Tenant from any claim, dispute liability or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties duty under this AgreementSection, and if Collateral Subadvisor so long as Tenant is made a party given reasonable opportunity to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Project Lease, Project Lease, Project Lease
Indemnity. (a) In any threatenedHertz agrees to indemnify, pending or completed actionhold harmless, suit, or proceeding to which Collateral Subadvisorand defend the QI, its shareholdersrespective agents, officers, directors, employees or associated persons employees, members and affiliates (collectively, each a “its affiliatesQI Indemnitee”) was from and against any and all losses, liabilities, costs and expenses suffered in connection with any claims or is actions to the extent directly related to the QI’s involvement under this Agreement as a party “Qualified Intermediary”, pursuant to Treasury Regulation Section 1.1031(k)-1(g)(4)(iii), unless such losses, liabilities, costs or is threatened expenses resulted from the gross negligence or willful misconduct of a QI Indemnitee. This indemnity shall include losses, liabilities and claims resulting from payments, withdrawals or orders made or purported to be made a party by reason in accordance with, or from actions taken in good faith and in reliance upon the provisions of this Agreement. This indemnity shall include any and all claims arising from or in connection with the fact that Collateral Subadvisor is presence, release, threat of release, generation, analysis, storage, transportation, discharge or was an investment adviser disposal of hazardous substances or hazardous materials (as such terms or similar terms may be defined in the Fund provisions of applicable federal, state or otherwiselocal laws, irrespective of whether such laws, regulations, directives or ordinances are in existence at the Fund date of this Agreement) to, in, under, about, adjacent, or from any Relinquished Property or Replacement Property, and Managerall costs of investigation, jointly soil and severallywater sampling, shall indemnify drilling, testing, reporting, repair, removal, remediation, clean-up, closure, decontamination and hold harmlessdetoxification of any property, subject including the rental and use of any equipment used in connection therewith; and including the cost of any professionals and persons performing any services in connection with any environmental clean-up, in each case, to subsection the extent related to the QI’s involvement under this Agreement.
(db) below, Collateral Subadvisor and its affiliates against If the QI Indemnitee seeks indemnification for any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees)expense, judgments and amounts paid claim or action described in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c5.02(a) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor Hertz shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or claim at its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim expense and shall be indemnified by the indemnifying party for pay any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the IndemniteeQI Indemnitee and any judgments which may be finally awarded, the Indemnitee may effect such settlement, pay such amount in settlement as it provided that Hertz shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer control the defense of such third party claims or actions. The QI Indemnitee agrees to settle any matters, consult and if the Indemnitor successfully negotiates a settlement and tenders payment therefor cooperate to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter extent reasonably deemed necessary by Hertz in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementsuch defense.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Master Exchange Agreement (Hertz Global Holdings Inc), Master Exchange Agreement (Hertz Corp), Master Exchange Agreement (Hertz Global Holdings Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party The Corporation (the “Indemnitor”) hereby agrees to indemnify and hold the Agent, and its subsidiaries or affiliates, and each of their directors, officers, employees and agents (hereinafter referred to as the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations, or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which the Agent and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law, or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Indemnitor by the Agent and its Personnel hereunder, or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against the Agent and/or its Personnel, provided that the Indemnitor has agreed to such settlement), provided, however, that this indemnity shall indemnify not apply to the Indemnitee extent that a court of competent jurisdiction in a final judgment that has become non-appealable shall determine that:
(i) the Agent and/or its Personnel have been grossly negligent or its affiliates against have committed wilful misconduct or any fraudulent act in the course of such performance; and
(ii) the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were directly caused by the gross negligence, wilful misconduct or fraud referred to in (i). Without limiting the generality of the foregoing, this indemnity shall apply to all reasonable expenses (including attorneys’ legal expenses), losses, claims and accountants’ fees, actually and reasonably incurred by it liabilities that the Agent may incur as a result of any action or its affiliates in connection therewithlitigation that may be threatened or brought against the Agent.
e(b) In the event that If for any claim, dispute or litigation arises between Collateral Subadvisor and any party reason (other than the Fund occurrence of any of the events itemized in (a)(i) and (a)(ii) above), the foregoing indemnification is unavailable to the Agent or Managerany Personnel or insufficient to hold the Agent or any Personnel harmless as a result of such expense, which loss, claim, dispute damage or litigation liability, then the Indemnitor and the Agent and such Personnel will contribute to such expense, loss, claim, damage or liability in such proportion as is unrelated appropriate to reflect not only the relative benefits received by the Indemnitor on the one hand and the Agent or any Personnel on the other hand but also the relative fault of the Indemnitor and the Agent or any Personnel, as well as any relevant equitable considerations; provided that the Indemnitor shall in any event contribute to the Fund’s businessamount paid or payable by the Agent or any Personnel as a result of such expense, and if the Fund or Manager are made a party to such loss, claim, dispute damage or litigation liability and any excess of such amount over the amount of the fees received by such the Agent hereunder.
(c) The Indemnitor agrees that in case any legal proceeding shall be brought against the Indemnitor and/or the Agent by any governmental commission or regulatory authority or any stock exchange or other partyentity having regulatory authority, Collateral Subadvisor either domestic or foreign, or shall defend investigate the Indemnitor and/or the Agent, and/or any actions brought Personnel of the Agent shall be required to testify in connection therewith on behalf or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the Fund and/or Manager each performance of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse professional services rendered to the interests of Indemnitor by the indemnifying partyAgent or any Personnel, then the indemnified party may retain Agent and such Personnel shall have the right to employ its own counsel in connection with therewith provided the Agent and such claim Personnel act reasonably in selecting such counsel, and 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 Agent’s Personnel in connection therewith) and out-of-pocket expenses incurred by their Personnel in connection therewith shall be indemnified paid by the indemnifying party for Indemnitor as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against the Agent or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for Agent’s Personnel or after receipt of notice of the commencement or any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification shall may be applicable sought from the Indemnitor, the Agent will notify the Indemnitor in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Indemnitor, will keep the Indemnitor advised of the progress thereof and will discuss with respect to default judgmentsthe Indemnitor all significant actions proposed. However, confessions of judgment or settlements entered into the failure by the Indemnitee without Agent to notify the prior consent Indemnitor will not relieve the Indemnitor of its obligations to indemnify the IndemnitorAgent and/or any Personnel. The Indemnitor shall, on behalf of itself and the Agent and/or any Personnel, as applicable, be entitled to (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however, that should the defence shall be conducted through legal counsel acceptable to the Agent and/or any Personnel, as applicable, acting reasonably, that no settlement of any such legal proceeding may be made by the Indemnitor refuse without the prior written consent of the Agent and/or any Personnel, as applicable, and none of the Agent and/or any Personnel, as applicable, shall be liable for any settlement of any such legal proceeding unless it has consented in writing to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it consent not to be unreasonably withheld. The Agent and its Personnel shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, appoint its or their own separate counsel at the Indemnitor’s cost provided the Agent acts reasonably in selecting such counsel.
(e) The indemnity and if contribution obligations of the Indemnitor successfully negotiates a settlement and tenders payment therefor shall be in addition to any liability which the IndemniteeIndemnitor may otherwise have, shall extend upon the Indemnitee must either use its best efforts to dispose of the matter in accordance with the same terms and conditions to the Personnel of the proposed settlement or Agent and shall be binding upon and inure to the Indemnitee may refuse to settle the matter benefit of any successors, assigns, heirs and continue its defense in which latter event the maximum liability personal representatives of the Indemnitor to Indemnitor, the Indemnitee shall be Agent and any of the amount Personnel of said proposed settlement.
g) the Agent. The foregoing provisions for indemnification shall survive the completion of professional services rendered under this Agreement or any termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Agency Agreement, Agency Agreement, Agency Agreement
Indemnity. a(i) In any threatenedThe Grantor agrees to indemnify, pending or completed actionpay and hold harmless the Beneficiary, suit, or proceeding to which Collateral Subadvisor, its shareholders, the Trustee and each of the other Secured Parties and the officers, directors, employees or associated persons employees, agents and Affiliates of the Beneficiary, the Trustee and each of the other Secured Parties (collectively, the “its affiliatesIndemnitees”) was from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs (including, without limitation, settlement costs), expenses or is a party disbursements of any kind or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (including, without limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any actioninvestigative, suit administrative or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in judicial proceeding, commenced or threatened, whether or not opposed such Indemnitee shall be designated a party thereto), which may be imposed on, incurred by or asserted against that Indemnitee, in any manner relating to or arising out hereof, the Indenture, the Notes, any other Collateral Document or any other document evidencing the Secured Obligations (including, without limitation, any misrepresentation by the Grantor in this Deed of Trust, the Indenture, the Notes, any other Collateral Document or any other document evidencing the Secured Obligations (the “Indemnified Liabilities”); provided, however, that the Grantor shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities to the best interests extent it has been determined by a final decision (after all appeals and the expiration of time to appeal) by a court of competent jurisdiction that such Indemnified Liabilities arose from the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard willful misconduct of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to preceding sentence may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partypublic policy, the Fund and/or ManagerGrantor shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Deed of Trust (Jacobs Entertainment Inc), Credit Line Deed of Trust (Jacobs Entertainment Inc), Credit Line Deed of Trust (Jacobs Entertainment Inc)
Indemnity. (a) In any threatenedaddition to the payment of expenses pursuant to Section 9.2, pending whether or completed actionnot the Transactions shall be consummated, suitCompany agrees to defend (subject to Indemnitees’ selection of counsel), or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless Agents and Lenders, officersand the Officers, directors, employees trustees, employees, agents, advisors and Affiliates of Agents and Lenders (collectively called the “Indemnitees”), from and against any and all Indemnified Liabilities (as hereinafter defined); provided that Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence or associated persons willful misconduct of that Indemnitee or its related parties as determined by a final judgment of a court of competent jurisdiction.
(b) As used herein, “Indemnified Liabilities” means, collectively, “its affiliates”) was any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, actions, judgments, suits, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or is a party other response action necessary to remove, remediate, clean up or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against ▇▇▇▇▇ any loss, liability, damage, costHazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including attorneys’ the reasonable and documented out-of-pocket fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial Proceeding commenced or threatened by any Person, suit whether or proceeding not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against Collateral Subadvisor or its affiliates mayany such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the sole discretion of Manager, be paid by other Loan Documents or the Fund and/or Manager in advance Transactions (including Lenders’ agreement to make the Loans hereunder or the use or intended use of the final disposition proceeds thereof or the issuance of such actionLetters of Credit hereunder or the use or intended use of any thereof, suit or proceeding, if and the failure of Issuing Lender to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, honor a drawing under a Letter of Credit as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason a result of any act or omission omission, whether rightful or wrongful, of any present or future de jure or de facto Government Authority, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral Subadvisor or the enforcement of the Guaranties), (ii) the statements contained in the commitment letter delivered by any Lender to Company with respect thereto or (iii) any Environmental Claim or any Hazardous Materials Activity relating to the Fund (including costs and expenses or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of investigating and defending Company or any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the IndemnitorSubsidiaries; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement except to the extent such loss, liability, damage, cost Environmental Claim or expense (including reasonable attorneys’ and accountants’ fees) was caused Hazardous Materials Activity arises solely from the gross negligence or willful misconduct of Indemnitee as determined by or resulted from a material violation final judgment of this Agreement by the Indemnitor or violation a court of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementcompetent jurisdiction.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Indemnity. a) A. In any threatenedaddition to the payment of expenses pursuant to Section 9.2, pending whether or completed actionnot the transactions contemplated hereby shall be consummated, suitthe Credit Parties agree to defend (subject to Indemnitees’ selection of counsel), or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless each of the Lead Arrangers and Agents and each Lender, and the respective partners, officers, directors, employees employees, agents, attorneys, and affiliates of each of the Lead Arrangers and each of the Agents and each Lender (collectively called the “Indemnitees”), from and against any and all Indemnified Liabilities (as hereinafter defined); provided that the Credit Parties shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or associated persons (willful misconduct of that Indemnitee or any of its Affiliates as determined by a final judgment of a court of competent jurisdiction. As used herein, “Indemnified Liabilities” means, collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseany and all liabilities, the Fund and Managerobligations, jointly and severallylosses, shall indemnify and hold harmlessdamages (including natural resource damages), subject to subsection penalties, actions, judgments, suits, claims (d) belowincluding environmental claims), Collateral Subadvisor and its affiliates against any loss, liability, damage, costcosts, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the reasonable and documented fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding commenced or threatened by any Credit Party or any other Person, suit whether or proceeding not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against Collateral Subadvisor or its affiliates mayany such Indemnitee, in any manner relating to or arising out of this Agreement or the sole discretion of Manager, be paid by other Loan Documents or the Fund and/or Manager in advance transactions contemplated hereby or thereby (including the Lenders’ agreements to make the Credit Extensions hereunder or the use or intended use of the final disposition proceeds thereof, or any enforcement of such action, suit or proceeding, if and to any of the Loan Documents (including the enforcement of the Guaranty)).
B. To the extent that the person on whose behalf such expenses are paid shall agree undertakings to reimburse the Fund and/or Managerdefend, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend pay and hold harmless set forth in this Section 9.3 may be unenforceable in whole or in part because they violate any law or public policy, the FundCredit Parties 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 Indemnitees or any of them.
C. To the extent permitted by applicable law, Manager the Credit Parties and Manager’s memberseach of their Subsidiaries shall not assert, and each hereby waives, any claim against the Lenders, the Agents, the Lead Arrangers and their respective Affiliates, officers, directors, employees employees, attorneys or associated persons (collectivelyagents, “its affiliates”) against on any loss, theory of liability, damagefor special, costindirect, expenses consequential or punitive damages (including attorneys’ fees and accountants’ fees)as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, judgments and amounts paid tort or duty imposed by any applicable legal requirement) arising out of, in settlement actually and reasonably incurred by it connection with, as a result of, or its affiliates by reason in any way related to, this Agreement or any other Loan Document, or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates event occurring in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager Credit Parties and each of whom agree its Subsidiaries hereby waives, releases and agrees not to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to ▇▇▇ upon any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred such damages, whether or not accrued and whether or not known or suspected to exist in connection with investigating or defending such claimits favor.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Hospira Inc), Credit Agreement (Hospira Inc), Credit Agreement (Hospira Inc)
Indemnity. a(i) In any threatenedThe Mortgagor agrees to indemnify, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, pay and hold harmless the Mortgagee and each of the other Secured Parties and the officers, directors, employees or associated persons employees, agents and Affiliates of the Mortgagee and each of the other Secured Parties (collectively, the “its affiliatesIndemnitees”) was from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs (including, without limitation, settlement costs), expenses or is a party disbursements of any kind or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (including, without limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any actioninvestigative, suit administrative or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in judicial proceeding, commenced or threatened, whether or not opposed such Indemnitee shall be designated a party thereto), which may be imposed on, incurred by or asserted against that Indemnitee, in any manner relating to or arising out hereof, the Indenture, the Notes, any other Collateral Document or any other document evidencing the Secured Obligations (including, without limitation, any misrepresentation by the Mortgagor in this Mortgage, the Indenture, the Notes, any other Collateral Document or any other document evidencing the Secured Obligations (the “Indemnified Liabilities”); provided, however, that the Mortgagor shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities to the best interests extent it has been determined by a final decision (after all appeals and the expiration of time to appeal) by a court of competent jurisdiction that such Indemnified Liabilities arose from the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard willful misconduct of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to preceding sentence may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partypublic policy, the Fund and/or ManagerMortgagor shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Jacobs Entertainment Inc), Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Jacobs Entertainment Inc), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Jacobs Entertainment Inc)
Indemnity. aEach Grantor hereby agrees, jointly with the other Grantors and severally, to indemnify the Notes Collateral Agent and the Secured Parties, and their respective successors, assigns, agents and employees (each, and “Indemnitee”), from and against any and all liabilities, damages, penalties, suits and reasonable and documented out-of-pocket costs and expenses (including the reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee) In of any threatenedkind and nature (including, pending without limitation, all expenses of litigation or completed action, suit, preparation therefor whether or proceeding to which not the Notes Collateral Subadvisor, its shareholders, officers, directors, employees Agent or associated persons (collectively, “its affiliates”) was or any Secured Party is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisethereto) imposed on, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates asserted against the Notes Collateral Agent or the Secured Parties, or their respective successors, assigns, agents and employees, in connection with any actionway relating to or arising out of this Security Agreement, suit or proceeding if the manufacture, purchase, acceptance, rejection, ownership, delivery, lease, possession, use, operation, condition, sale, return or other disposition of any Collateral Subadvisor acted in good faith (including, without limitation, latent and in a manner it reasonably believed to be in other defects, whether or not opposed to discoverable by the best interests of Notes Collateral Agent or the FundSecured Parties or any Grantor, and any claim for patent, trademark or copyright infringement); provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement such indemnity shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed as to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Managerany Indemnitee, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and available to the extent that the person on whose behalf such losses, claims, damages, liabilities or related expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “willful misconduct of such Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) This Section 8.16 shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party Taxes other than Collateral Subadvisor which claim, dispute any Taxes that represent losses or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend damages arising from any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such non-Tax claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Pledge and Security Agreement (Microchip Technology Inc), Pledge and Security Agreement (Microchip Technology Inc), Pledge and Security Agreement (Microchip Technology Inc)
Indemnity. (a) In any threatenedThe Client shall protect, pending or completed actiondefend, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmlessConsultant and his assigns and attorneys, subject to subsection (d) belowaccountants, Collateral Subadvisor employees, officers and its affiliates directors harmless from and against any lossall losses, liabilityliabilities, damagedamages, costjudgments, expenses (including attorneys’ fees and accountants’ fees)claims, judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any actioncounterclaims, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Funddemands, and provided that its conduct does not constitute willful misfeasanceactions, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any actionproceedings, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ ' fees) incurred of every kind and character resulting from or relating to or arising out of (a) the inaccuracy, non-fulfillment or breach of any representation, warranty, covenant or agreement made by the Indemnitee in connection with such settlement Client herein; or (b) any legal action, including any counterclaim, to the extent such lossit is based upon alleged facts that, liabilityif true, damagewould constitute a breach of any representation, cost warranty, covenant or expense agreement made by the Client herein; or (c) negligent actions or omissions of the Client or any employee or agent of the Client, or any reckless or willful misconduct, occurring during the Term hereof with respect to any of the decisions made by the Client.
(b) The Consultant shall protect, defend, indemnify and hold Client and his assigns and attorneys, accountants, employees, officers and directors harmless from and against all losses, liabilities, damages, judgments, claims, counterclaims, demands, actions, proceedings, costs and expenses (including reasonable attorneys’ and accountants’ ' fees) was caused by of every kind and character resulting from or resulted from a material violation relating to or arising out of this Agreement by (a) the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoinginaccuracy, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions non-fulfillment or breach of any warranty in this Agreementrepresentation, warranty, covenant or agreement made by the Consultant herein or the failure of the Consultant to abide by all federal and state laws and regulations concerning investor relations, stock promotions, and public disclosure requirements; or (b) any legal action, including any counterclaim, to the extent it is based upon alleged facts that, if true, would constitute a breach of any representation, warranty, covenant or agreement made by the Consultant herein; or (c) negligent actions or omissions of the Consultant or any employee or agent of the Consultant, or any reckless or willful misconduct, occurring during the Term hereof with respect to any of the decisions made by the Consultant.
Appears in 3 contracts
Sources: Consulting Agreement (Teleservices Internet Group Inc), Consulting Agreement (Teleservices Internet Group Inc), Consulting Agreement (E Financial Depot Com)
Indemnity. a) In any threatenedTenant shall indemnify, pending or completed actionhold harmless, suitand, or proceeding to which Collateral Subadvisorat Landlord’s option (with such attorneys as Landlord may approve in advance and in writing), its shareholders, defend Landlord and Landlord’s officers, directors, employees or associated persons (collectivelyshareholders, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisepartners, the Fund members, managers, employees, contractors, property managers, agents and Managermortgagees and other lien holders, jointly from and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses and all “Losses” (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it hereinafter defined) arising from or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections related to: (a) any violation or alleged violation by Tenant or any of Tenant’s Parties of any of the requirements, ordinances, statutes, regulations or other laws referred to in this Article 10, including, without limitation, the Environmental Laws; (b) any breach of the provisions of this Article 10 by Tenant or any of Tenant’s Parties; or (c) aboveany Hazardous Use by Tenant or any Tenant Parties on, unless ordered about or from the Leased Premises of any Hazardous Material approved by a court Landlord under this Lease. The term “Losses” shall mean all claims, demands, expenses, actions, judgments, damages, penalties, fines, liabilities, losses of every kind and nature (including, without limitation, property damage, damages for the loss or administrative forumrestriction on use of any space or amenity within the Building or the Complex, shall be made only as authorized damages arising from any adverse impact on marketing space in the specific case Complex, sums paid in settlement of claims and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard any costs and expenses associated with injury, illness or death to or of conduct set forth in subsection (a) or (cany person), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionsuits, suit or proceeding referred to in subsection (a) or (c) aboveadministrative proceedings, or in defense of any claimcosts and fees, issue or matter thereinincluding, the immediately preceding sentence of this subsection (d) shall but not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenseslimited to, including attorneys’ and accountantsconsultants’ fees, actually fees and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s businessexpenses, and if the Fund or Manager costs of cleanup, remediation, removal and restoration, that are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend in any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect way related to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified matter covered by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimforegoing indemnity.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Sublease Agreement (Atara Biotherapeutics, Inc.), Office Lease (Tobira Therapeutics, Inc.), Office Lease (Tobira Therapeutics, Inc.)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason 18.1 Each of the fact that Collateral Subadvisor is or was an investment adviser of Issuer and the Fund or otherwise, the Fund and ManagerGuarantors indemnifies, jointly and severally, shall indemnify on an after-tax basis, the Paying Agent, the Registrar and hold harmlesstheir respective directors, subject to subsection officers, employees and controlling persons against all losses, liabilities, costs, claims, actions, damages, expenses or demands (dincluding, but not limited to, all reasonable costs, charges and expenses paid or incurred in disputing or defending the foregoing) below, Collateral Subadvisor and its affiliates which any of them may incur or which may be made against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it of them as a result of or its affiliates in connection with any action, suit the appointment or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests exercise of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations powers and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of Paying Agent or the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c)Registrar, as the case may be. To , under this Agreement except as may result from the extent that the Indemnitee wilful default or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf negligence of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless Paying Agent or the Fund and Manager from and with respect to any amounts awarded to such other party. If any claimRegistrar, dispute or litigation arises between as the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or case may be, or that of their respective directors, officers, employees or controlling persons.
18.2 The Paying Agent severally indemnifies, on an after-tax basis, the Issuer and the Guarantors and their respective directors, officers, employees and controlling persons against all losses, liabilities, costs, claims, actions, damages, expenses or demands (including, but not limited to, all reasonable costs, charges and expenses paid or incurred in whole disputing or in part, adverse to defending the interests foregoing) which any of them may incur or which may be made against any of them as a result of the indemnifying partyPaying Agent's wilful default or negligence or that of the Paying Agent's directors, officers, employees or controlling persons.
18.3 The Registrar severally indemnifies, on an after-tax basis, the indemnified party may retain its own counsel in connection with such claim Issuer and shall be indemnified by the indemnifying party for any legal Guarantors and their respective directors, officers, employees and controlling persons against all losses, liabilities, costs, claims, actions, damages, expenses or any other demands (including, but not limited to, all reasonable costs, charges and expenses reasonably paid or incurred in connection with investigating disputing or defending such claimthe foregoing) which any of them may incur or which may be made against any of them as a result of the Registrar's wilful default or negligence or that of the Registrar's directors, officers, employees or controlling persons.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive 18.4 This Clause 18 survives the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Indenture (Marconi Corp PLC), Indenture (Marconi Corp PLC), Indenture (Marconi Corp PLC)
Indemnity. a) In Without waiving any threatenedrights, pending claims or completed actiondefenses FWH or any of its Affiliates may have under any agreement with an Indemnified Person other than the Loan Documents, suitFWH shall pay, or proceeding to which indemnify, save and hold the Administrative Agent, the Collateral Subadvisor, its shareholders, Agent and each Secured Party and each of their respective officers, directors, employees or associated persons employees, counsel, agents and attorneys-in-fact and Affiliates (collectivelyeach, an “its affiliatesIndemnified Person”) was harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, charges, expenses or disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following the Unwind of Prattsburgh or repayment of the Term Loans or the termination, resignation or replacement of any Agent or any Lender) be imposed on, incurred by or asserted against any such Person in any way relating to, or arising out of, the business, activities, assets, liabilities or obligations of Prattsburgh, including the Unwind of Prattsburgh, or the actions of the Borrower or any of its Affiliates related thereto, and any investigation, litigation or proceeding (including any bankruptcy, insolvency, reorganization or other similar proceeding or appellate proceeding) related to Prattsburgh, whether or not any Indemnified Person is a party or is threatened to be made a party by reason of thereto (all the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseforegoing, collectively, the Fund and Manager, jointly and severally, “Indemnified Liabilities”); provided that FWH shall indemnify and hold harmless, subject not have any obligation hereunder to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred Indemnified Person with respect to Indemnified Liabilities determined by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and a court of competent jurisdiction in a manner it reasonably believed final and non-appealable order to be in or not opposed to have arisen from the best interests of the Fundfraud, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition willful misconduct of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12Indemnified Person.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (First Wind Holdings Inc.), Credit Agreement (First Wind Holdings Inc.), Credit Agreement (First Wind Holdings Inc.)
Indemnity. a) In any threatenedaddition to the payment of expenses pursuant to subsection 10.2, pending whether or completed actionnot the transactions contemplated hereby shall be consummated, suitCompany agrees to defend, or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless Agents and Lenders, and the officers, directors, employees trustees, partners, employees, agents, attorneys and affiliates of any of Agents and Lenders (collectively called the "INDEMNITEES") from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or associated persons nature whatsoever (collectivelyincluding, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisewithout limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding commenced or threatened by any Person, suit whether or proceeding not any such Indemnitee shall be designated as a party or a potential party thereto), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including, without limitation, securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against Collateral Subadvisor or its affiliates mayany such Indemnitee, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor manner relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms arising out of this Agreement or involved willful misfeasancethe other Loan Documents or the transactions contemplated hereby or thereby (including, bad faith without limitation, Lenders' agreement to make the Loans hereunder or the use or intended use of the proceeds of any of the Loans or the issuance of Letters of Credit hereunder or the use or intended use of any of the Letters of Credit) (collectively called the "INDEMNIFIED LIABILITIES"); provided that Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent, and only to the extent, of any particular liability, obligation, loss, damage, penalty, claim, cost, expense or disbursement that arose from the gross negligence on the part or willful misconduct of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered that Indemnitee as determined by a final judgment of a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may becompetent jurisdiction. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to defend, suit or proceeding referred to in subsection (a) or (c) aboveindemnify, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or preceding sentence may be availableunenforceable because it is violative of any law or public policy, any indemnified party reasonably determines Company shall contribute the maximum portion that its interests are or may be, in whole or in part, adverse it is permitted to pay and satisfy under applicable law to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Sherman Acquisition Corp), Credit Agreement (Gulf State Credit LLP), Credit Agreement (Account Portfolios Gp Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, Indemnify the Bank and its shareholdersemployees, officers, directors, employees or associated persons (collectivelyshareholders, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseagents, the Fund attorneys, successors and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates assigns against any lossand all losses, liabilityclaims, damagedamages, costliabilities, expenses (including attorneys’ fees and accountants’ fees)obligations, judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any actionpenalties, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundactions, and provided that its conduct does not constitute willful misfeasancejudgments, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any actionsuits, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating any kind or nature whatsoever, including, without limitation, attorneys' fees and defending expenses, incurred by them arising out of, in any claimsway connected with, demand or suit as a result of (a) this Agreement or the Related Documents or the transactions contemplated hereby or protection or enforcement (including collection or disposition of Collateral) of the Bank's rights under this Agreement or the Related Documents, (b) the execution and attorneys’ and accountants’ fees) if such act or omission materially violated the terms delivery of this Agreement or involved willful misfeasance, bad faith or gross negligence on by the part of Collateral Subadvisor in Company and the performance of the Obligations, (c) any violation of Environmental Laws or any other Requirements of Law by the Company or any Subsidiary or any of its duties under Property as well as any cost or expense incurred in remedying such violation, and (d) any claim, litigation, investigation or proceedings relating to any of the foregoing or the transactions contemplated by this Agreement, whether or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in not the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification Bank is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitorthereto; provided, however, that should the Indemnitor refuse such indemnity shall not apply to consent to a settlement approved by the Indemniteeany such losses, the Indemnitee may effect such settlementclaims, pay such amount in settlement as it shall deem reasonable and seek a judicial damages, liabilities or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or related expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by any willful misconduct of the Bank. The foregoing indemnities shall survive the Termination Date, the consummation of the transactions contemplated by this Agreement, the repayment of the Obligations and the invalidity or resulted from a material violation unenforceability of any term or provision of this Agreement by the Indemnitor or violation of the standard Related Documents and shall remain in effect regardless of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose investigation made by or on behalf of the matter in accordance with the terms and conditions of the proposed settlement Bank or the Indemnitee may refuse to settle Company and the matter and continue its defense in which latter event the maximum liability content or accuracy of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of any representation or warranty made under this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Oilgear Co), Credit Agreement (Oilgear Co), Credit Agreement (Oilgear Co)
Indemnity. a) In the event that any threatened, pending shares of Common Stock owned by the Executive are offered or completed action, suit, sold by means of a registration statement pursuant to Section 16 or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise17 hereof, the Fund and Manager, jointly and severally, shall Company agrees to indemnify and hold harmlessharmless the Executive and each person, subject if any, who controls or may control the Executive within the meaning of the Act (the Executive and any such other persons being hereinafter referred to subsection (dindividually as an "Indemnified Person" and collectively as "Indemnified Persons") belowfrom and against all demands, Collateral Subadvisor claims, actions or causes of action, assessments, losses, damages, liabilities, costs and its affiliates against any lossexpenses, liabilityincluding, damagewithout limitation, costinterest, expenses (including attorneys’ penalties and reasonable attorneys fees and accountants’ feesdisbursements, asserted against, resulting to, imposed upon or incurred by such Indemnified Person, jointly or severally, directly or indirectly (hereinafter referred to in this Section 18(f) in the singular as a "claim" and in the plural as "claims"), judgments and amounts paid based upon, arising out of or resulting from any untrue statement or alleged untrue statement of a material fact contained in settlement actually and reasonably incurred the registration statement, any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incident to registration or qualification of any such shares, or any omission or alleged omission to state therein a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, or any violation by it the Company of the Act of any state securities or its affiliates Blue Sky Laws, except insofar as such claim is based upon, arises out of or results from information developed or certified by the Executive for use in connection with any action, suit the registration statement or proceeding if Collateral Subadvisor acted in good faith arises out of or results from the omission of information and in a manner it reasonably believed to be in or not opposed known to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed Executive prior to the best interests violation or alleged violation, provided, that the maximum amount of the Fund.
b) Expenses incurred liability in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates mayrespect of such indemnification shall be limited, in the sole discretion case of Managerthe Company or the Executive, be paid respectively, to an amount equal to the net proceeds actually received by the Fund and/or Manager in advance Company or the Executive, respectively, from the sale of such shares effected pursuant to such registration. The Executive agrees to indemnify and hold harmless the Company, its officers and directors, and each person, if any, who controls or may control the Company within the meaning of the final disposition Act (the Company, its officers and directors, and any such persons also being hereinafter referred to individually in this context as an "Indemnified Person" and collectively as "Indemnified Persons") from and against all claims based upon, arising out of, or resulting from any untrue statement of such actiona material fact contained in the registration statement, suit or proceedingany omission to state therein a material fact necessary in order to make the statement made therein, if and in the light of the circumstances under which they were made, not misleading, to the extent that such claim is based upon, arises out of, or results from information developed or certified by the person on whose behalf such expenses are paid Executive for use in connection with the registration statement or arises out of, or results from an omission of information known to the Executive prior to the violation or alleged violation. The indemnifications set forth herein shall agree be in addition to reimburse any liability the Fund and/or Manager, as applicable, Company or the Executive may otherwise have to the Indemnified Persons. Promptly after actually receiving definitive notice of any claim in the event respect of which an Indemnified Person may seek indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees18(f), judgments and amounts paid in settlement actually and reasonably incurred by it such Indemnified Person shall submit written notice thereof to either the Company or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c)Executive, as the case may bebe (sometimes being hereinafter referred to as an "Indemnifying Person"). To The omission of the Indemnified Person to so notify the Indemnifying Person of any such claim shall not relieve the Indemnifying Person from any liability it may have hereunder except to the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) such liability was caused or increased by such omission, or (cb) abovethe ability of the Indemnifying Person to reduce such liability was materially adversely affected by such omission. In addition, or in defense the omission of the Indemnified Person to notify the Indemnifying Person of any claimsuch claim shall not relieve the Indemnifying Person from any liability it may have otherwise than hereunder. The Indemnifying Person shall have the right to undertake, issue by counsel or matter thereinrepresentatives of its own choosing, the immediately preceding sentence defense, compromise or settlement (without admitting liability of this subsection (dthe Indemnified Person) shall not apply of any such claim asserted, such defense, compromise or settlement to be undertaken at the expense and risk of the Indemnifying Person, and the party obligated Indemnified Person shall have the right to indemnify engage separate counsel, at its own expense, whom counsel for the Indemnifying Person shall keep informed and consult with in a reasonable manner. In the event the Indemnifying Person shall elect not to undertake such defense by its own representatives, the Indemnifying Person shall give prompt written notice of such election to the Indemnified Person, and the Indemnified Person shall undertake the defense, compromise or settlement (without admitting liability of the Indemnified Person) thereof on behalf of and for the account and risk of the Indemnifying Person by counsel or other party (representatives designed by the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) Indemnified Person. In the event that any claimclaim shall arise out of a transaction or cover any period or periods wherein the Company and the Executive shall each be liable hereunder for part of the liability or obligation arising therefrom, dispute or litigation arises between Collateral Subadvisor then the parties shall, each choosing its own counsel and any party other than the Fund or Managerbearing its own expenses, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to defend such claim, dispute and no settlement or litigation by compromise of such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf claim may be made without the joint consent or approval of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense Company and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth hereinExecutive. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right no Indemnifying Person shall be obligated hereunder with respect to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter amounts paid in accordance with the terms and conditions of the proposed settlement or any claim if such settlement is effected without the Indemnitee may refuse to settle the matter and continue its defense in consent of such Indemnifying Person (which latter event the maximum liability of the Indemnitor to the Indemnitee consent shall not be the amount of said proposed settlementunreasonably withheld).
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Employment Agreement (Banc Corp), Employment Agreement (Banc Corp), Employment Agreement (Banc Corp)
Indemnity. (a) In any threatenedHertz agrees to indemnify, pending or completed actionhold harmless, suit, or proceeding to which Collateral Subadvisorand defend the QI, its shareholdersrespective agents, officers, directors, employees or associated persons employees, members and affiliates (collectively, each a “its affiliatesQI Indemnitee”) was from and against any and all losses, liabilities, costs and expenses suffered in connection with any claims or is actions to the extent directly related to the QI’s involvement under this Agreement as a party “Qualified Intermediary”, pursuant to Treasury Regulation Section 1.1031(k)-1(g)(4)(iii), unless such losses, liabilities, costs or is threatened expenses resulted from the gross negligence or willful misconduct of a QI Indemnitee. This indemnity shall include losses, liabilities and claims resulting from payments, withdrawals or orders made or purported to be made a party by reason in accordance with, or from actions taken in good faith and in reliance upon the provisions of this Agreement. This indemnity shall include any and all claims arising from or in connection with the fact that Collateral Subadvisor is presence, release, threat of release, generation, analysis, storage, transportation, discharge or was an investment adviser disposal of hazardous substances or hazardous materials (as such terms or similar terms may be defined in the Fund provisions of applicable federal, state or otherwiselocal laws, irrespective of whether such laws, regulations, directives or ordinances are in existence at the Fund date of this Agreement) to, in, under, about, adjacent, or from any Relinquished Property or Replacement Property, and Managerall costs of investigation, jointly soil and severallywater sampling, shall indemnify drilling, testing, reporting, repair, removal, remediation, clean-up, closure, decontamination and hold harmlessdetoxification of any property, subject including the rental and use of any equipment used in connection therewith; and including the cost of any professionals and persons performing any services in connection with any environmental clean-up, in each case, to subsection the extent related to the QI’s involvement under this Agreement.
(db) below, Collateral Subadvisor and its affiliates against If the QI Indemnitee seeks indemnification for any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees)expense, judgments and amounts paid claim or action described in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c5.02(a) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor Hertz shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or claim at its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim expense and shall be indemnified by the indemnifying party for pay any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the IndemniteeQI Indemnitee and any judgments which may be finally awarded; provided that, the Indemnitee may effect such settlement, pay such amount in settlement as it Hertz shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer control the defense of such third party claims or actions. The QI Indemnitee agrees to settle any matters, consult and if the Indemnitor successfully negotiates a settlement and tenders payment therefor cooperate to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter extent reasonably deemed necessary by Hertz in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementsuch defense.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Master Exchange Agreement, Master Exchange Agreement (Hertz Global Holdings, Inc), Master Exchange Agreement (Hertz Global Holdings Inc)
Indemnity. a) In any threatenedTenant shall, pending or completed actiondoes and will indemnify, suitdefend, or proceeding to which Collateral Subadvisorand save harmless Landlord and its agents, its shareholdersservants, directors, officers, directorspartners, invitees, guests, clients, beneficiaries, licensees, and employees (all of the foregoing hereinafter called "Landlord's Agents", except that "Landlord's Agents" will not include Tenant or associated persons Tenant's Agents [as hereinafter defined] if Tenant or any one or more of Tenant's Agents are or become one of Landlord's Agents) of, from, and against any and all liabilities, claims, demands, causes of actions, suits, debts, costs (collectivelyincluding court costs, “its affiliates”) was attorneys' fees, and costs of investigation), damages (including, without limitation, consequential damages), fees, fines, penalties, expenses, and actions of any kind or is a party character in connection with, or is threatened alleged to be made a party in connection with, or arising, or alleged to arise, by reason of the fact that Collateral Subadvisor is injury to or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination death of any actionperson or damage to or loss of property occurring on, suit in, or proceeding by judgment, order about the Premises or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act other claim of whatsoever nature of any person or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreementparty occasioned, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall alleged to be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may beoccasioned, in whole or in part, adverse to by any act, action, commission, or omission on the interests part of Tenant or any employee, partner, director, officer, servant, agent, contractor, invitee, guest, client, assignee, licensee, beneficiary, or subtenant of Tenant (all of the indemnifying partyforegoing hereinafter collectively called "Tenant's Agents"), the indemnified party may retain its own counsel or by any breach, violation, or nonperformance of any covenant of Tenant under this Lease. If any action or proceeding shall be brought by or against Landlord in connection with any such claim and liability or claim, Tenant, on notice from Landlord, shall be indemnified defend such action or proceeding, at Tenant's expense, by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None through attorneys approved by Landlord. The provisions of the foregoing provisions for indemnification this Section 9.05 shall be applicable apply to all activities of Tenant with respect to default judgments, confessions of judgment the Premises occurring on or settlements entered into by after the Indemnitee without the prior consent commencement of the Indemnitor; providedLease Term or the date Tenant is in possession of the Premises, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it whichever is earlier. Tenant's obligations under this Section 9.05 shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement not be limited to the extent such losslimits or coverage of insurance maintained,or required to be maintained, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of Tenant under this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementLease.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Real Estate Lease (Wastequip Inc), Real Estate Lease (Wastequip Inc), Real Estate Lease (Wastequip Inc)
Indemnity. The Tenant hereby indemnifies and saves harmless the Landlord and its successors and assigns from and against any and all losses, liabilities, damages, costs (including, without restriction, all legal and other professional costs on a solicitor and his own client full indemnity basis) and expense of any kind whatsoever including, without limitation:
(a) In the costs of defending, counter-claiming or claiming over against third parties in respect of any threatenedaction or matter including legal fees, pending costs and disbursements on a solicitor and his own client basis and at all court levels;
(b) any cost, liability or completed action, suit, damage arising out of a settlement of any action entered into by the Landlord with or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason without the consent of the fact that Collateral Subadvisor is Tenant; and
(c) the costs of repair, clean-up or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be restoration paid by the Fund and/or Manager in advance Landlord and any fines levied against the Landlord; which at any time or from time to time may be paid, incurred or asserted against the Landlord, whatsoever arising from or out of, directly or indirectly, the Tenant’s use or occupancy of the final disposition of such action, suit Lands or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, occasioned wholly or in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred part by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating the Tenant, its agents, contractors, employees, sub-Tenant, licensees, concessionaires or anyone permitted by the Tenant to be in or on the Fund Lands and the Lands. Without limiting the generality of the forgoing, this indemnity shall include those aforementioned costs which at any time or from time to time may be paid, incurred or asserted against the Landlord as a direct or indirect result of the presence on or under, or the escape seepage, leakage, spillage, discharged, emission or release, of any Hazardous Substances, from the Lands either onto any lands, (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (cLands), as into the case may beatmosphere or into any water. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for This indemnification shall survive the expiration of the Term of the Lease and the termination of this Agreementthe Lease for whatever cause.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason Effective as of the fact that Collateral Subadvisor is or was an investment adviser Borrowing Date of the Fund or otherwiseFirst Loan, in addition to the payment of expenses pursuant to Section 24, the Fund and ManagerBorrower shall defend, jointly and severallyindemnify, shall indemnify pay and hold harmless, subject to subsection (d) below, Collateral Subadvisor the Lender and its affiliates and their past, present and future respective directors, managers, shareholders, members, officers, employees, counsel, accountants, investors, financial advisors, agents, consultants and other advisors (each, an “Indemnitee”), from and against (i) any losstaxes (other than any tax on the overall net income of the Lender) paid or incurred by the Lender relating to, liabilityarising out of, damageor in connection with this Secured Note, costwhether or not such taxes were correctly or legally imposed or asserted by the relevant governmental authority, and (ii) any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for Indemnitees in connection with any actioninvestigative, suit administrative or judicial proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in commenced or threatened by any person or entity, whether or not opposed any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations, on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of this Secured Note or the transactions contemplated hereby (including the Lender’s agreement to make a loan or the use or intended use of the proceeds thereof, or any enforcement of this Secured Note), IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE; provided that the Borrower shall have no obligation to any Indemnitee hereunder with respect to the best interests of foregoing to the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or extent arising from the gross negligence or reckless disregard willful misconduct of its obligations and duties under that Indemnitee as determined by a final, non-appealable order of a court of competent jurisdiction. Notwithstanding any contrary provision in this Agreement. The termination of any actionSecured Note, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests obligation of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and Borrower with respect to any amounts awarded each indemnity given by them in this Secured Note shall survive the Maturity Date, the payment in full of the Obligations, or conversion to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this AgreementCommon Stock, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this AgreementSecured Note.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Secured Convertible Promissory Note (Momentus Inc.), Secured Convertible Promissory Note (Momentus Inc.), Secured Convertible Promissory Note (Momentus Inc.)
Indemnity. a) In any threatenedLessor agrees to indemnify and save harmless Lessee and its parents, pending or completed actionsubsidiaries, suitaffiliates, or proceeding to which Collateral Subadvisor, its shareholdersdirectors, officers, directorsemployees, employees or associated persons agents, servants, attorneys and representatives from any and all claims, causes of action, damages, fines, judgments, penalties, costs (collectivelyincluding environmental clean-up costs and response costs), “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, costliabilities, expenses or losses (including without limitation, reasonable attorneys’ ' fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it expenses of litigation) arising during or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in after the Term: (a) as a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination result of any actionviolation by Lessor of any applicable federal, suit state or proceeding by judgment, order local environmental laws or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Managerregulations, as applicablenow or hereinafter in effect, in the event indemnification is not permitted under this Section 12.
cregulating, relating to or imposing liability or imposing standards of conduct concerning any Hazardous Materials ("Environmental Laws") Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund Premises; or (including costs b) as a result of the presence, disturbance, discharge, release, removal or cleanup of Hazardous Materials as a result of environmental contamination or other similar conditions which occurred or first arose prior to commencement of the Term and expenses during the period of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated Lessor's ownership of the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) Premises; or (c) aboveas a result of any violation of the accessibility or path of travel requirements imposed by ADA; or (d) as a result of any of Lessor's representations and warranties being untrue. These indemnities shall survive the expiration, unless ordered by a court cancellation or administrative forumtermination of the Lease. Lessee agrees to indemnify and save harmless Lessor and its stockholders, shall be made only as authorized in affiliates, directors, officers, employees, agents, servants, attorneys and representatives from any and all claims, causes of action, damages, fines, judgments, penalties, costs (including environmental clean-up costs and response costs), liabilities, expenses or losses (including without limitation, reasonable attorneys' fees and expenses of litigation) arising during or after the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection Term: (a) as a result of Lessee's use and occupancy of the Premises, including, without limitation, any violation by Lessee of any Environmental Laws relating to the Premises; or (c), b) as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf result of the Fund and/or Manager each presence, disturbance, discharge, release, removal or cleanup of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless Hazardous Materials as a result of environmental contamination or other similar condition which occurred or first arose after the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests commencement of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth hereinTerm. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification These indemnities shall survive for a period of three (3) years following the expiration, cancellation or termination of this AgreementLease.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Lease Agreement (Hughes Supply Inc), Lease Agreement (Hughes Supply Inc), Lease Agreement (Hughes Supply Inc)
Indemnity. a) In any threatenedThe Borrower further agrees to defend, pending or completed actionprotect, suitindemnify, and hold harmless the Agent and each and all of the Lenders and each of their respective Affiliates, and each of such Agent's, Lender's, or proceeding to which Collateral Subadvisor, its shareholders, Affiliate's respective officers, directors, employees employees, attorneys and agents (including, without limitation, those retained in connection with the satisfaction or associated persons attempted satisfaction of any of the conditions set forth in ARTICLE V) (collectively, “its affiliates”the "INDEMNITEES") was from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses of any kind or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (including, without limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding, suit whether or proceeding not such Indemnitees shall be designated a party thereto), imposed on, incurred by, or asserted against Collateral Subadvisor such Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the Transaction Documents, or any act, event or transaction related or attendant thereto or to the Initial Acquisitions, any Permitted Acquisition, the Mergers, the Public Offering or the Related Transactions, the making of the Loans, and the issuance of and participation in Letters of Credit hereunder, the management of such Loans or Letters of Credit, the use or intended use of the proceeds of the Loans or Letters of Credit hereunder, or any of the other transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages, personal injury, death, punitive damages, economic damages, consequential damages, treble damages, intentional, willful or wanton injury, damage or threat to the environment, natural resources or public health or welfare, costs and expenses (including, without limitation, attorney, expert and consulting fees and costs of investigation, feasibility or remedial action studies), fines, penalties and monetary sanctions, interest, direct or indirect, known or unknown, absolute or contingent, past, present or future relating to violation of any Environmental, Health or Safety Requirements of Law arising from or in connection with the past, present or future operations of the Borrower, its Subsidiaries or any of their respective predecessors in interest, or, the past, present or future environmental, health or safety condition of any respective property of the Borrower or its affiliates maySubsidiaries, the presence of asbestos-containing materials at any respective property of the Borrower or its Subsidiaries or the Release or threatened Release of any Contaminant into the environment (collectively, the "INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Matters caused by or resulting from (y) a dispute among the Lenders or a dispute between any Lender and the Agent, or (z) the willful misconduct or Gross Negligence of such Indemnitee or breach of contract by such Indemnitee with respect to the Loan Documents, in the sole discretion of Managereach case, be paid as determined by the Fund and/or Manager in advance final non-appealed judgment of a court of competent jurisdiction. If the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees undertaking to indemnify, defend pay and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case preceding sentence may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense be unenforceable because it is violative of any action, suit law or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter thereinpublic policy, the immediately preceding sentence of this subsection (d) Borrower shall not apply contribute the maximum portion which it is permitted to pay and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expensessatisfy under applicable law, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, payment and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf satisfaction of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Matters incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementIndemnitees.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Homeusa Inc), Credit Agreement (Landcare Usa Inc), Credit Agreement (Transportation Components Inc)
Indemnity. a) In Lessee agrees that each payment of Basic Rent hereunder shall be free and clear of, and without deduction for, any threatenedand all withholdings on account of Taxes of any nature whatsoever, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in whether or not opposed an exclusion pursuant to Section 10(b) applies, except as required by law. If any such deduction or withholding of Taxes is required with respect to such payments of Basic Rent, Lessee shall pay an additional amount of Basic Rent such that the best interests of the Fundnet amount actually received by Lessor, and provided after such deduction or withholding, will be equal to all such amounts that its conduct does not constitute willful misfeasancewould be received by Lessor if no such deduction or withholding had been required, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and but only to the extent necessary to ensure that the person on whose behalf holders of the outstanding Equipment Notes receive such expenses are paid shall agree amount as may be required by the Indenture. If Lessee pays any amount to reimburse Lessor (or to any taxing authority for the Fund and/or Manager, account of Lessor) as applicable, in a result of the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless application of the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded withholding Tax which is an excluded tax in respect of Lessor pursuant to such other party. If any claimSection 10(b), dispute or litigation arises between then Lessor (or, in the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partycase of Taxes imposed on the Owner Trustee, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement Owner Participant to the extent such lossTax would give rise to a Lessor's Lien for which the Owner Participant
(i) upon or with respect to, liabilitybased upon or measured by (A) any Engine or any Part thereof, damageor interest therein, cost (B) the manufacture, purchase, ownership, delivery, leasing, acceptance, rejection, assigning, possession, use, operation, location, settlement of any insurance claim, sale, mortgaging, pledging, financing, subleasing, rental, retirement, abandonment, registration, re-registration, deregistration, preparation, installation, modification, repair, maintenance, replacement, transportation, storage, transfer of title, return or expense other disposition of the Aircraft, the Airframe, any Engine or any Part thereof or interest therein; or (C) the rentals, receipts, income or earnings arising therefrom (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by without limitation the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoingRent), the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.or
Appears in 3 contracts
Sources: Engine Lease Agreement (America West Airlines Inc), Engine Lease Agreement (America West Airlines Inc), Engine Lease Agreement (America West Airlines Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) The Corporation and its subsidiaries or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification affiliated companies (the “IndemniteeIndemnitor”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To , hereby agree to indemnify and hold the Agent, and its subsidiaries or affiliates, and each of their directors, officers, employees and agents (hereinafter referred to as the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations, or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which the Agent and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law, or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Indemnitor by the Agent and its Personnel hereunder, or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against the Agent and/or its Personnel, provided that the Indemnitor has agreed to such settlement), provided, however, that this indemnity shall not apply to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable shall determine that:
(i) the Indemnitee or Agent and/or its affiliates Personnel have been successful on grossly negligent or have committed wilful misconduct or any fraudulent act in the merits course of such performance; and
(ii) the expenses, losses, claims, damages or otherwise in defense of any actionliabilities, suit as to which indemnification is claimed, were directly caused by the gross negligence, wilful misconduct or proceeding fraud referred to in subsection (ai). Without limiting the generality of the foregoing, this indemnity shall apply to all reasonable expenses (including legal expenses), losses, claims and liabilities that the Agent may incur as a result of any action or litigation that may be threatened or brought against the Agent.
(b) If for any reason (other than the occurrence of any of the events itemized in (a)(i) and (a)(ii) above), the foregoing indemnification is unavailable to the Agent or any Personnel or insufficient to hold the Agent or any Personnel harmless as a result of such expense, loss, claim, damage or liability, then the Indemnitor and the Agent and such Personnel will contribute to such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Indemnitor on the one hand and the Agent or any Personnel on the other hand but also the relative fault of the Indemnitor and the Agent or any Personnel, as well as any relevant equitable considerations; provided that the Indemnitor shall in any event contribute to the amount paid or payable by the Agent or any Personnel as a result of such expense, loss, claim, damage or liability and any excess of such amount over the amount of the fees received by the Agent hereunder.
(c) aboveThe Indemnitor agrees that in case any legal proceeding shall be brought against the Indemnitor and/or the Agent by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or in defense shall investigate the Indemnitor and/or the Agent, and/or any Personnel of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) Agent shall not apply and the party obligated be required to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought testify in connection therewith on behalf or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the Fund and/or Manager each performance of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse professional services rendered to the interests of Indemnitor by the indemnifying partyAgent or any Personnel, then the indemnified party may retain Agent and such Personnel shall have the right to employ its own counsel in connection with therewith provided the Agent and such claim Personnel act reasonably in selecting such counsel, and 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 Agent’s Personnel in connection therewith) and out-of-pocket expenses incurred by their Personnel in connection therewith shall be indemnified paid by the indemnifying party for Indemnitor as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against the Agent or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for Agent’s Personnel or after receipt of notice of the commencement or any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification shall may be applicable sought from the Indemnitor, the Agent will notify the Indemnitor in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Indemnitor, will keep the Indemnitor advised of the progress thereof and will discuss with respect to default judgmentsthe Indemnitor all significant actions proposed. However, confessions of judgment or settlements entered into the failure by the Indemnitee without Agent to notify the prior consent Indemnitor will not relieve the Indemnitor of its obligations to indemnify the IndemnitorAgent and/or any Personnel. The Indemnitor shall, on behalf of itself and the Agent and/or any Personnel, as applicable, be entitled to (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however, that should the defence shall be conducted through legal counsel acceptable to the Agent and/or any Personnel, as applicable, acting reasonably, that no settlement of any such legal proceeding may be made by the Indemnitor refuse without the prior written consent of the Agent and/or any Personnel, as applicable, and none of the Agent and/or any Personnel, as applicable, shall be liable for any settlement of any such legal proceeding unless it has consented in writing to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it consent not to be unreasonably withheld. The Agent and its Personnel shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, appoint its or their own separate counsel at the Indemnitor’s cost provided the Agent acts reasonably in selecting such counsel.
(e) The indemnity and if contribution obligations of the Indemnitor successfully negotiates a settlement and tenders payment therefor shall be in addition to any liability which the IndemniteeIndemnitor may otherwise have, shall extend upon the Indemnitee must either use its best efforts to dispose of the matter in accordance with the same terms and conditions to the Personnel of the proposed settlement or Agent and shall be binding upon and inure to the Indemnitee may refuse to settle the matter benefit of any successors, assigns, heirs and continue its defense in which latter event the maximum liability personal representatives of the Indemnitor to Indemnitor, the Indemnitee shall be Agent and any of the amount Personnel of said proposed settlement.
g) the Agent. The foregoing provisions for indemnification shall survive the completion of professional services rendered under this Agreement or any termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Indemnity. a(A) In any threatenedTenant shall indemnify, pending or completed actiondefend, suit, or proceeding to which Collateral Subadvisor, and hold Landlord and its shareholders, officers, directors, agents and employees (together, the “Indemnified Parties”), harmless from and against any and all manner of losses, claims, demands, actions, suits, damages (including, without limitation, punitive damages), fines, penalties, administrative and judicial proceedings, judgments, settlements, expenses (including, without limitation, reasonable consultant fees, attorneys’ fees, or associated persons expert fees) and/or costs (collectively, the “its affiliatesIndemnified Exposures”) was which are brought or recoverable against, or suffered or incurred by, Landlord or the Indemnified Parties as a result of (i) Tenant’s failure to comply with the provisions of this Article 10, (ii) the Release by Tenant or any Person acting through or on behalf of Tenant of any Hazardous Materials in, on, under, or from the Premises or the Common Use Facilities during the Lease Term and/or during the ABX Prior Possession Period for which remediation is a party required under applicable Environmental Laws and (iii) any noncompliance with Environmental Laws caused by Tenant or is threatened to be made a party by reason ABX within the Air Park during the Lease Term or during the ABX Prior Possession Period, regardless of whether Tenant had knowledge of any of the fact that Collateral Subadvisor is or was foregoing.
(B) Without limiting the foregoing, if any condition covered by Tenant’s indemnification obligations set forth in Section 10.03(A) occurs (each an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees“Environmental Indemnification Condition”), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections then (a) Tenant shall, at its sole cost and expense, promptly take all actions as are reasonably necessary to return the Premises or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c)Common Use Facilities, as the case may be. To , or any improvements thereon (and the Air Park, to the extent applicable) in all material respects to the condition required by applicable Environmental Laws; provided, that Landlord’s approval of such actions shall first be obtained, which approval shall not be unreasonably withheld, conditioned or delayed; and (b) if, due to a Release of Hazardous Materials by Tenant or any Person acting through or on behalf of Tenant during the Indemnitee Lease Term or during the ABX Prior Possession Period, a governmental authority determines that site investigation, site assessment and/or a cleanup plan must be prepared or that a cleanup should be undertaken on or surrounding the Premises or the Common Use Facilities or in any improvements thereon due to any such Release by Tenant or any Person acting through or on behalf of Tenant, then, subject to the terms of this Article 10, Tenant shall, at its affiliates sole cost and expense, prepare and submit the required plans and financial assurances, and carry out the approved plans; provided that, Tenant shall have been successful the right to participate with Landlord in all discussions and communications with such governmental authority with respect to such matters and the right to contest in good faith and with diligence any such determination by such governmental authority, and to assert claims against any third party. Anything contained in this Agreement to the contrary notwithstanding, Tenant shall have no responsibility or liability under this Agreement for cleanup or any other action relating to a Release of Hazardous materials in, on or under, or from the merits Premises or otherwise in defense of the Common Use Facilities occurring prior to the ABX Prior Possession Period.
(C) The following terms shall apply to any actionand all Indemnified Exposures claims made by Landlord against Tenant relating to any Environmental Indemnification Condition under this Lease Agreement:
(i) Prior to asserting any such Indemnified Exposures claim against Tenant, suit or proceeding referred Landlord shall provide to in subsection Tenant: (a) prompt, written notice of such Indemnified Exposures claim with sufficient detail so as to permit Tenant to understand the nature of such claim, and (b) if curable, a reasonable opportunity for Tenant to cure the same by causing action to be taken to remedy or otherwise address the Environmental Indemnification Condition (and/or the consequences thereof, including, without limitation, fines or penalties) which gives rise to such Indemnified Exposures claim.
(ii) Landlord’s claims relating to Indemnified Exposures shall be limited to Indemnified Exposures arising out of or relating to any one or all of the following: (a) any claims, actions, suits, proceedings or demands instituted or asserted by a third party, including, without limitation, by a governmental authority having jurisdiction; (b) one or more Environmental Indemnification Conditions that materially interfere with any bona fide then-existing use or reasonably anticipated use of the Premises and/or the Air Park by Landlord or its employees, agents, tenants or invitees; (c) aboveone or more Environmental Indemnification Conditions that reasonably do or could adversely affect the health, safety or welfare of the public or any user of or invitee at the Air Park taking into account any applicable standards for such health, safety and public welfare considerations included in defense of any claim, issue the applicable Environmental Laws; or matter therein, the immediately preceding sentence of this subsection (d) one or more Environmental Indemnification Conditions which Landlord is required by applicable Environmental Laws to address; and
(iii) Landlord’s claims relating to remediation of an Indemnified Environmental Condition shall be limited to those costs reasonably necessary to attain Ohio EPA Voluntary Action Program standards applicable to the current “Land Use and Activities” category for the Premises and/or the affected Common Use Facilities, as the case may be, as that term is defined in Ohio Administrative Code 3745-300-08(C)(2)(c)(iii)(March 1, 2009 edition), with no use of groundwater for any purpose other than monitoring and no use of subsurface structures for human occupancy, and not apply and the party obligated to indemnify the for any other party (the “Indemnitor”) shall indemnify the Indemnitee more superior uses or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewithmore stringent standards.
e(D) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify The indemnification and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties obligations of Tenant under this Section 10.03 shall survive any expiration or termination of this Lease Agreement, and if Collateral Subadvisor is made a party to such claimany renewal, dispute expansion or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision amendment of this subsection (e), if, in Lease Agreement and/or the execution and delivery of any claim as to which indemnity is new lease with Tenant covering all or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests portion of the indemnifying partyPremises or the Air Park. The term “Indemnified Exposures” shall include, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably without limitation, necessary costs incurred in connection with investigating any investigation of on-site conditions or defending such claim.
f) None off-site conditions directly relating to Releases of Hazardous Materials by Tenant or its permitted sublessees from the foregoing provisions for indemnification shall be applicable with respect to default judgmentsPremises or the Common Use Facilities or any necessary cleanup, confessions of judgment remediation, removal or settlements entered into restoration work required by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor an Environmental Law because of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred matter covered by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of Tenant’s indemnification under this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementSection 10.03.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Lease Agreement (Air Transport Services Group, Inc.), Lease Agreement (Air Transport Services Group, Inc.)
Indemnity. a) In any threatened, pending Whether or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of not the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisetransactions contemplated hereby are consummated, the Fund and ManagerCredit Parties, jointly and severally, shall indemnify agree to indemnify, pay and hold harmlessharmless each Lending Party and any subsequent holder of any of the Notes or any other Obligation, subject to subsection and each of such Person’s officers, directors, employees, attorneys, agents and Affiliates (dcollectively, the “Indemnitees”) below, Collateral Subadvisor from and its affiliates against any lossand all liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the fees and accountants’ fees), judgments disbursements of counsel for such Indemnitee and amounts paid in settlement actually and reasonably incurred by it or its affiliates the allocated cost of internal legal staff) in connection with any actionclaim, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding, suit whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of any Credit Party, and the expenses of investigation by experts, engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by any Lending Party) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against Collateral Subadvisor such Indemnitee as a result of or its affiliates may, in connection with the sole discretion of Manager, be paid transactions contemplated hereby or by the Fund and/or Manager in advance Loan Documents or the other Related Transactions Documents (including, without limitation, (i)(A) as a direct or indirect result of the final disposition presence on or under, or Release from, any Real Property now or previously owned, leased or operated by any Credit Party of such actionany Hazardous Materials or any Hazardous Materials contamination, suit (B) arising out of or proceeding, if and relating to the extent that offsite disposal of any Hazardous Materials generated or present on any such Real Property or (C) arising out of or resulting from the person on whose behalf environmental condition of any such expenses are paid shall agree Real Property or the applicability of any governmental requirements relating to reimburse the Fund and/or ManagerHazardous Materials, as applicablewhether or not occasioned wholly or in part by any condition, in the accident or event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred caused by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund any Credit Party, and (including costs ii) proposed and expenses actual Extensions of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties Credit under this Agreement) and the use or intended use of any Extension of Credit or the proceeds thereof, except that the Credit Parties shall have no obligation hereunder to an Indemnitee with respect to any liability resulting solely from the gross negligence or by reason willful misconduct of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered such Indemnitee as finally determined by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may becompetent jurisdiction. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise undertaking set forth in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence may be unenforceable, each Credit Party shall contribute the maximum portion which it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of them. Without limiting the generality of any provision of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expensesSection, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s businessfullest extent permitted by law, and if the Fund each Credit Party hereby waives all rights for contribution or Manager are made a party to such claim, dispute or litigation by such any other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf rights of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and recovery with respect to liabilities, losses, damages, costs and expenses arising under or relating to Environmental Laws that it might have by statute or otherwise against any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement except to the extent that such loss, liability, damage, cost items are finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation willful misconduct of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the such Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Medical Staffing Network Holdings Inc), Credit Agreement (Medical Staffing Network Holdings Inc)
Indemnity. (a) In any threatened, pending or completed action, suit, or proceeding The Company agrees to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection the extent permitted by law, each Subscriber, its officers, directors, employees, advisers and agents and each person or entity who controls (dwithin the meaning of the Securities Act or the Exchange Act) belowsuch Subscriber and each affiliate (within the meaning of Rule 405 under the Securities Act) of the Subscriber, Collateral Subadvisor from and its affiliates against any lossall losses, liabilityclaims, damagedamages, cost, liabilities and reasonable and documented out-of-pocket expenses (including including, without limitation, any reasonable and documented outside attorneys’ fees fees) resulting from, based upon or arising out of any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances in which they were made) not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by or on behalf of the Subscriber expressly for use therein.
(b) In connection with any Registration Statement in which a Subscriber is participating, such Subscriber shall furnish (or cause to be furnished) to the Company in writing such information and accountants’ fees), judgments and amounts paid in settlement actually and affidavits as the Company reasonably incurred by it or its affiliates requests for use in connection with any actionsuch Registration Statement or prospectus and, suit to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each person or proceeding if Collateral Subadvisor acted entity who controls (within the meaning of the Securities Act or the Exchange Act) the Company and each affiliate (within the meaning of Rule 405 under the Securities Act) of the Company against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable and documented outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in good faith and or incorporated by reference in any Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a manner it reasonably believed material fact required to be stated therein in or not opposed to the best interests case of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith prospectus or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted preliminary prospectus in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests light of the Fund.
b) Expenses incurred in defending a threatened circumstances under which they were made, or pending civilnecessary to make the statements therein not misleading, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and but only to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicableuntrue statement is contained in (or not contained in, in the event indemnification is not permitted under this Section 12.
ccase of an omission) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees any information or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid affidavit so furnished in settlement actually and reasonably incurred writing by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party Subscriber expressly for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitoruse therein; provided, however, that should the Indemnitor refuse obligation to consent indemnify shall be severally and not jointly with any Other Subscriber or other selling stockholder named in such Registration Statement, and the liability of each such Subscriber of Subscribed Shares shall be in proportion to a settlement approved and limited to the net proceeds received by such Subscriber from the Indemnitee, sale of Subscribed Shares pursuant to such Registration Statement.
(c) Any person or entity entitled to indemnification herein shall (1) give prompt written notice to the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination indemnifying party of any claim with respect to reimbursement by which it seeks indemnification (provided that the Indemnitor of failure to give prompt notice shall not impair any loss, liability, damage, cost person’s or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement entity’s right to indemnification hereunder to the extent such lossfailure has not materially prejudiced the indemnifying party) and (2) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, liabilitypermit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, damagethe indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, cost conditioned or expense delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (including reasonable attorneys’ and accountants’ feessuch money is so paid by the indemnifying party pursuant to the terms of such settlement) was caused or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which settlement 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.
(d) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or resulted on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person or entity of such indemnified party and shall survive the transfer of the Subscribed Shares purchased pursuant to this Subscription Agreement.
(e) If the indemnification provided under this Section 8 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material violation fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of this Agreement an omission), or relates to information supplied by (or not supplied by in the Indemnitor case of an omission), such indemnifying party or violation indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the standard of conduct losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth hereinin this Sections 8(a), 8(b) and 8(c) above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. Notwithstanding No person or entity guilty of fraudulent misrepresentation (within the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose meaning of Section 11(f) of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee Securities Act) shall be entitled to contribution pursuant to this Section 8(e) from any person or entity who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 8(e) by any seller of Subscribed Shares, together with any amounts under Section 8(b), shall be limited in amount to the amount of said proposed settlement.
g) The foregoing provisions net proceeds received by such seller from the sale of such Subscribed Shares pursuant to the Registration Statement. Notwithstanding anything to the contrary herein, in no event will any party be liable for indemnification shall survive the termination of consequential, special, exemplary or punitive damages in connection with this Subscription Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Golden Arrow Merger Corp.), Business Combination Agreement (Golden Arrow Merger Corp.)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, Tenant shall indemnify and hold harmlesssave Landlord, subject to subsection (d) belowLandlord’s affiliates, Collateral Subadvisor employees, agents, lenders, contractors, attorneys, invitees, licensees and its affiliates any similar person and the landlord or landlords under any ground or underlying leases, harmless from and against any lossand all liens, liabilityclaims, damagedemands, costactions, expenses (causes of action, obligations, penalties, charges, liabilities, damages, losses, costs or expenses, including attorneys’ reasonable attorneys fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating litigation and defending appeal, arising from or connected with (i) Tenant's use of the Premises, including, without limitation, any claimsacts, demand omissions, or suit negligence of Tenant or any person claiming by, through, or under Tenant, or of Tenant’s affiliates, employees, agents, contractors, attorneys, invitees, or licensees or any similar person, in, on, or about the Premises, either prior to or during the Term (including, without limitation, any holdovers in connection therewith), and attorneys’ and accountants’ feesfurther including, without limitation, any acts, omissions, or negligence in the making or performance of any Improvements; (ii) if such act the condition of the Premises or omission materially violated the terms conduct of this Agreement Tenant's business, or involved willful misfeasancefrom any activity, bad faith work, occurrence, happening or gross negligence thing done on the part Premises by Tenant or by Tenant’s affiliates, employees, agents, contractors, attorneys, invitees, or licensees or any similar person, in, on, or about the Premises or from any cause whatsoever in or about the Premises or elsewhere; (iii) the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or presence of: any hydrocarbon- based products, including, but not limited to, gasoline, diesel fuel and oil; flammable explosives; asbestos; urea formaldehyde insulation; radioactive materials; hazardous wastes; toxic or contaminated substances or similar materials including, without limitation, any substances which are “hazardous substances,” “hazardous wastes,” “ hazardous materials ,” “ toxic substances,” wastes,” “ regulated substances ,” “ industrial solid wastes ,” or “ pollutants” under the Hazardous Materials Laws, as described below, and/or other applicable environmental laws, ordinances and regulations (collectively, the “Hazardous Materials”); (iv) from violations of Collateral Subadvisor or noncompliance with any governmental requirements, the Rules and Regulations, the CCRs, or insurance requirements; (v) any breach or default in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.obligation on
Appears in 2 contracts
Sources: Retail Lease Agreement, Retail Lease Agreement
Indemnity. a) In any threatenedaddition to all of the Borrower’s other Indebtedness under this Agreement, pending or completed actionthe Borrower agrees to defend, suitprotect, or proceeding to which Collateral Subadvisorindemnify, pay and hold harmless the Lender and its shareholders, officers, directors, employees or associated persons employees, attorneys, consultants, agents and affiliates (collectively, the “its affiliatesIndemnitees”) was from and against any and all losses, damages, liabilities, obligations, penalties, fees, costs, and expenses (including, without limitation, attorneys’ and paralegals’ fees, costs and expenses) incurred by such Indemnitees, whether prior to or is from and after the initial loan disbursement hereunder, whether direct, indirect or consequential, as a party result of or is arising from or relating to any suit, investigation, action or proceeding by any Person, whether threatened to be made or initiated, asserting a party claim for any legal or equitable remedy against any Person under any statute or regulation (other than suits or other actions by reason Borrower against an Indemnitee), including, without limitation, any federal or state securities or labor laws, or under any federal, state or local environmental, health or safety laws, regulations, or common law principles, arising from or in connection with the past, present or future operations of the fact that Collateral Subadvisor is Borrower, any of its Subsidiaries or was an investment adviser its predecessors in interest, or the past, present or future environmental condition of the Fund Real Property), the presence of any Hazardous Materials on the Real Property, or the release or threatened release of any Hazardous Materials into the environment from the Real Property, or under any common law or equitable cause or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it arising from or its affiliates in connection with any actionof the following: (i) the negotiation, suit preparation, execution or proceeding if Collateral Subadvisor acted performance of this Agreement or of any document executed in good faith and in a manner it reasonably believed to be in or not opposed connection with the transactions contemplated by this Agreement, (ii) the Lender’s furnishing of funds to the best interests Borrower under this Agreement, including, without limitation, the management of the FundLoans, and provided that its conduct does or (iii) any matter relating to the financing transactions contemplated by this Agreement or by any document executed in connection with the transactions contemplated by this Agreement (collectively, the “Indemnified Matters”), provided, however, the Borrower shall not constitute willful misfeasance, bad faith or be liable to indemnify any Indemnitee for claims arising as a result of such Indemnitee’s gross negligence or reckless disregard of its obligations and duties under this Agreementwillful misconduct. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests Such indemnification for all of the Fund.
b) Expenses incurred in defending a threatened or pending civilforegoing losses, administrative or criminal actiondamages, suit or proceeding against Collateral Subadvisor or its affiliates mayliabilities, in the sole discretion of Managerobligations, be paid by the Fund and/or Manager in advance of the final disposition of such actionfees, suit or proceedingpenalties, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the Lender shall be part of Collateral Subadvisor in the performance Indebtedness. In no event shall the Lender be liable to Borrower for indirect, special, consequential or punitive damages as a result of its duties under this Agreementor arising from or relating to any suit, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) aboveinvestigation, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit action or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates by Borrower against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewithLender.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Broadwind Energy, Inc.), Loan and Security Agreement (Broadwind Energy, Inc.)
Indemnity. a) In any threatenedBorrower will protect, pending or completed action, suit, or proceeding to which Collateral Subadvisorindemnify and hold Lender, its shareholdersdirectors, officers, employees and agents, and any successors to Lender's interest in any Golf Course Parcel, and any other Person who acquires any portion of a Golf Course Parcel at a foreclosure sale or otherwise through the exercise of Lender's rights and remedies under the Loan Documents, and any successors to any such other Person, and all directors, officers, employees and agents of all of the aforementioned indemnified parties, harmless from and against any and all claims, liabilities, damages, losses, fines, penalties, judgments, awards, costs and expenses (including, without limitation, reasonable attorneys' fees and costs (including, without limitation, court costs, expert witness fees, document reproduction expenses, costs of exhibit preparation, courier charges, postage and communication expenses) and expenses of investigation) that arise out of or associated persons relate in any way to any Hazardous Materials Claims or any use, handling, production, transportation, disposal, release or storage of any Hazardous Materials in, under or on any Golf Course Parcel whether by Borrower or by any Tenant or any other Person, including, without limitation, (collectivelya) all foreseeable and all unforeseeable consequential damages directly or indirectly arising out of (i) Hazardous Materials Claims or the use, “generation, storage, discharge or disposal of Hazardous Materials by Borrower, any prior owner or operator of any Golf Course Parcel or any Person on or about any Golf Course Parcel; (ii) any residual contamination affecting any natural resource or the environment; (iii) any exercise by Lender of any of its affiliates”rights and remedies hereunder; and/or (iv) was Lender's reliance on any representation or is a party warranty made herein or is threatened in any certificate delivered after the date hereof pursuant to SECTION 3(f) of this Agreement, if such representation or warranty proves to be made a party by reason of materially false or misleading; and (b) the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination costs of any actionrequired or necessary repair, suit cleanup, or proceeding by judgmentdetoxification of any Golf Course Parcel and the preparation of any closure or other required plans; PROVIDED, order or settlement shall notHOWEVER, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed Borrower will not be obligated to be in or not opposed to the best interests of the Fund.
bindemnify Lender under SECTION 5(b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, above in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if event and to the extent that the person on whose behalf Borrower can conclusively prove that (X) the contamination of the applicable Golf Course Parcel(s) was caused solely by actions, conditions, or events that occurred after the date that Lender(s) (or any purchaser at a foreclosure sale) actually acquired title to such Golf Course Parcel, and (Y) the contamination of the Golf Course Parcel was not caused by the direct or indirect acts or omissions of Borrower, any partner(s) of Borrower, any member(s) of Borrower, or any agent of Borrower. All such costs, damages, claims and expenses heretofore described and/or referred to in this SECTION 5 are paid shall agree hereinafter referred to reimburse as "EXPENSES." Borrower's liability to the Fund and/or Manageraforementioned indemnified parties will arise upon the earlier to occur of (x) discovery of any Hazardous Materials on, under or about any Golf Course Parcel, and (y) the institution of any Hazardous Materials Claims, and not upon the realization of loss or damage, and Borrower will pay to Lender from time to time, immediately upon such Lender's request, an amount equal to such Expenses, as applicablereasonably determined by such Lender. In addition, in the event indemnification any Hazardous Material is not permitted under this Section 12.
c) Collateral Subadvisor agrees caused to indemnifybe removed from any Golf Course Parcel by Borrower, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal Lender or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of Person, the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into number assigned by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse Environmental Protection Agency to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial Hazardous Material or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall similar identification will be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable solely in the event name of Borrower and Borrower will assume any and all liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreementfor such removed Hazardous Material.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Golf Trust of America Inc), Purchase and Sale Agreement (Golf Trust of America Inc)
Indemnity. a) In any threatenedEach Credit Party that is a signatory hereto shall jointly and severally indemnify and hold harmless each of Agent, pending or completed actionLenders and their respective Affiliates, suit, or proceeding to which Collateral Subadvisor, its shareholders, and each such Person's respective officers, directors, employees or associated persons employees, attorneys, agents and representatives (collectivelyeach, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise"Indemnified Person"), the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all suits, liabilityactions, damageproceedings, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit damages, losses, liabilities and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ ' fees and accountants’ feesdisbursements and other costs of investigation or defense, including those incurred upon any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the Indemnitee result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such 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, including any and all Environmental Liabilities and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (collectively, "Indemnified Liabilities"); provided, that no such settlement Credit Party shall be liable for any indemnification to an Indemnified Person to the extent that any such losssuit, liabilityaction, proceeding, claim, damage, cost loss, liability or expense (including reasonable attorneys’ and accountants’ fees) was caused by results from that Indemnified Person's gross negligence or resulted from a material violation of this Agreement by the Indemnitor or violation willful misconduct. Without limitation of the standard rights to indemnification specified herein, each Indemnified Person hereby agrees to provide Borrower with commercially reasonable notice of conduct set forth herein. Notwithstanding (i) any suit, action, proceeding, claim, damage, loss, liability or expense which, in the foregoingdetermination of such Indemnified Person, the Indemnitor shall, at all times, have the right could reasonably be likely to offer to settle any matters, and if the Indemnitor successfully negotiates result in a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter claim or demand for indemnification in accordance with the terms provisions of this Section 1.13(a) by such Indemnified Person and conditions of the proposed (ii) any settlement or the Indemnitee may refuse to settle the judicial or administrative determination of any matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable described in the event of any liability accruing to the extentpreceding clause (i). NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, if anyANY SUCCESSOR, caused by or based upon Collateral Subadvisor’s misrepresentationsASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, omissions or breach of any warranty in this AgreementFOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
Appears in 2 contracts
Sources: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)
Indemnity. a) In Whether or not any threatenedcredit is ever extended hereunder, pending and in addition to any other indemnifications herein or completed actionin any other Loan Documents or the Intercreditor Agreement, suitthe Borrower agrees to indemnify and defend and hold harmless on a current basis each Indemnified Party, or proceeding to from and against any and all liabilities, losses, damages, costs, interest, charges, counsel fees and other expenses and penalties of any kind which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason any of the fact that Collateral Subadvisor is Indemnified Parties may sustain or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates incur in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal action, suit judicial proceeding (whether or proceeding against Collateral Subadvisor not the Lender shall be designated a party thereto) or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates otherwise by reason of or arising out of the execution and delivery of this Agreement, any act of the other Loan Documents, the Intercreditor Agreement and/or the consummation of the transactions contemplated hereby or omission thereby; including but not limited to any actual or alleged presence or release of Collateral Subadvisor relating Hazardous Substances on or from any Property owned or operated by any Loan Party, whether prior to or during the Fund term hereof, or any Environmental Liability related in any way to any Loan Party or any Collateral. The indemnification provisions in this Section shall be enforceable regardless of whether the liability is based on past, present or future acts, claims or legal requirements (including costs any past, present or future bulk sales law, environmental law, fraudulent transfer act, occupational safety and expenses health law, or products liability, securities or other legal requirement), AND REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR OF ANY OTHER INDEMNIFIED PARTY, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ON ANY OTHER INDEMNIFIED PARTY, but not any of investigating and defending any claims, demand the foregoing in this Section arising from the willful misconduct or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties Indemnified Party seeking indemnification under this Agreement, or by reason Section; with the foregoing indemnity surviving satisfaction of its reckless disregard of its all obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Alpine Summit Energy Partners, Inc.), Credit Agreement (Alpine Summit Energy Partners, Inc.)
Indemnity. a(1) In any threatened, pending or completed action, suit, or proceeding Without prejudice to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason the terms and provisions of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseFacility Documents, the Fund and Manager, jointly and severally, Borrower shall indemnify the Bank and any such Receiver and shall hold harmlessthe Bank and such Receiver harmless from and against all actions, subject to subsection (d) belowlosses, Collateral Subadvisor and its affiliates against any lossclaims, proceedings, demands, liability, damage, cost, expenses costs (including attorneys’ fees and accountants’ feeslegal costs on a full indemnity basis), judgments or expenses, which the Bank and amounts paid in settlement actually and reasonably incurred by it such Receiver may sustain, suffer or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in incur as a manner it reasonably believed to be in or not opposed to the best interests consequence of the Fundnon-payment of any moneys payable under the Facility Documents, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act failure by the Borrower to perform its obligations under the Facility Document to which it is a party, or omission in the exercise or purported exercise by the Bank and/or such Receiver of Collateral Subadvisor relating any rights, powers, remedies, authorities or discretions vested in the Bank and/or such Receiver under or pursuant to the Fund Facility Documents, and a certificate of the Bank and/or such Receiver is conclusive and binding upon the Borrower.
(including costs 2) Without prejudice to any provisions herein, the Borrower shall on demand indemnify the Bank and expenses hold the Bank harmless from the against all actions, proceedings, losses, damages, expenses, penalties, costs, claims or liabilities whatsoever, legal or otherwise and whether in contract tort or otherwise which the Bank may sustain, suffer or incur as a consequence of:- any cancellation or failure of investigating and defending the Borrower to draw the whole or any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or banking facilities whether by reason of its reckless disregard non-fulfillment of its obligations any of the conditions precedent for drawdown or the Borrower purporting to revoke a notice requesting for drawdown thereof; or any prepayment of the banking facilities or any part thereof; or any default in the payment of any principal money when due, or any interest accrued thereon, or any other amounts payable under the Facility Documents; or any receipt or recovery by the Bank of all or any part of any overdue sum otherwise than on the due date of payment therefore; or the occurrence of any Event of Default and duties under this Agreement.
dthe accelerated repayment of the Outstandings pursuant thereto, such losses, damages, expenses, penalties, costs, claims or liabilities shall include but not be limited to such amount as the Bank shall certify (such certification being conclusive and binding upon the Borrower save for any manifest error) Any indemnification under subsections as being necessary to compensate the Bank for (a) or any actual loss of interest (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard including loss of conduct set forth in subsection (a) or (cmargin), as the case may be. To the extent that the Indemnitee commission or its affiliates have been successful fee incurred on the merits account of such default, and (b) any costs, interest, commission or otherwise in defense fees paid or payable on account of any action, suit funds borrowed in order to carry or proceeding referred to in subsection (a) or (c) above, or in defense of maintain any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expensesunpaid amount, including attorneys’ without limitation and accountants’ fees, actually and reasonably incurred by it break-funding costs or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to funding or carrying costs and/or losses which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel Bank shall certify in connection with such claim and shall be indemnified the acquisition or liquidation of deposits acquired by the indemnifying party for any legal Bank to make or maintain the banking facilities or any other expenses reasonably incurred part thereof, or any funding or carrying costs and/or losses in connection with investigating or defending such claim.
f) None the re-employment of funds during the remainder of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementterm/loan period.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Deed of Debenture, Deed of Debenture
Indemnity. a) In any threatened5 A. To the maximum extent permitted by law, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, but subject to subsection (d) belowSection 16.08 hereof, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement 6 Tenant shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager Landlord and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) all Landlord Parties from and against 7 any and all claims against any lossof such parties arising from (i) the use or occupancy of the Demised 8 Premises or any business therein or related thereto, liability(ii) any work or thing whatsoever done, damageor any 9 condition created (other than by Landlord, costits employees, agents or contractors) in or about the Demised 10 Premises, (iii) any negligent act or omission, or willful misconduct, of Tenant or any Tenant Party, 11 whether resulting in injury or death to persons or damage to property or otherwise, or (iv) any business 12 activities of Tenant or any Tenant Party, including without limitation marketing or promotional activities 13 and the manufacture, sale or condition of any merchandise sold, distributed or licensed by or on behalf of 14 Tenant or any Tenant Party, whether from or at the Demised Premises or another location; except, in 15 each case, to the extent that any such claim results from the negligence or willful misconduct of 16 Landlord or any other Landlord Party; together with, in the case of clauses (i), (ii), (iii), and (iv) of this 17 sentence, all costs, expenses (and liabilities incurred in or in connection with each such claim or action or 18 proceeding brought thereon, including all reasonable attorneys’ ' fees and accountants’ feesexpenses.
19 B. To the maximum extent permitted by law, but subject to Section 16.08 hereof, 20 Landlord shall indemnify, defend and hold harmless Tenant and the Tenant Parties from and against any 21 and all claims against any of such parties arising from (i) Landlord’s breach of Section 32.22B hereof 22 with respect to the REOA or (ii) any negligent act or omission, or willful misconduct of Landlord, its 24 to the extent that any such claim results from the negligence or willful misconduct of Tenant; in each 25 case together with all costs, expenses and liabilities incurred in or in connection with each such claim or 26 action or proceeding brought thereon, including all reasonable attorneys' fees and expenses.
27 C. If any claim that is within the scope of any indemnity set forth in this Lease is 28 asserted against any indemnified party, then the indemnified party shall give prompt Notice (each, an 29 "Indemnified Party Notice") thereof to the indemnifying party (i.e., within a time period so as not to 30 prejudice the indemnifying party's or its insurer's ability to defend effectively any action or proceeding 31 brought on such claim) and the indemnifying party shall have the right to defend and control the defense 32 of any action or proceeding brought on such claim with counsel chosen by the indemnifying party, 33 subject to the approval of the indemnified party (such approval not to be unreasonably withheld), judgments or by 34 the indemnifying party's insurance company. If the indemnified party fails promptly to deliver the 35 Indemnified Party Notice, the indemnifying party shall continue to be liable within the scope of the 36 indemnity provided herein, provided, however, the indemnifying party shall not be liable for such loss 37 sustained by any indemnified party as a result of the failure by the indemnified party to promptly deliver 38 to the indemnifying party the Indemnified Party Notice. If the indemnified party shall not afford the 39 indemnifying party the right to defend and amounts paid control the defense of any such action or proceeding then the 40 indemnifying party shall have no obligation under the applicable indemnity set forth in settlement actually and reasonably incurred by it this Lease with 41 respect to such action or proceeding or other actions or proceedings involving the same or related facts. 42 If the indemnifying party shall defend any such action or proceeding, then:
43 (i) the indemnified party shall cooperate with the indemnifying party (or its affiliates by reason 44 insurer) in the defense of any act such action or omission proceeding in such manner as the indemnifying party (or its 45 insurer) may from time to time reasonably request and the indemnifying party shall not be liable for the 46 costs of Collateral Subadvisor relating to any separate counsel employed by the Fund indemnified party;
1 (including costs and expenses of investigating and defending ii) the indemnified party shall not be liable for any claims, demand or suit and attorneys’ and accountants’ feessettlement made without 2 the indemnified party's consent;
3 (iii) if such act action or omission materially violated proceeding can be settled by the terms payment of this Agreement or involved willful misfeasance, bad faith or gross negligence money and 4 without the need to admit liability on the part indemnified party's part, then the indemnifying party shall have 5 the right to settle such action or proceeding without the indemnified party's consent and the indemnifying 6 party shall have no further obligation under the applicable indemnity set forth in this Lease with respect to 7 such action or proceeding or other actions or proceedings involving the same or related facts if the 8 indemnified party refuses to agree to such a settlement; and
9 (iv) if such action or proceeding cannot be settled merely by the payment of Collateral Subadvisor 10 money and without the need to admit liability on the indemnified party's part, then the indemnifying party 11 shall not settle such action or proceeding without the indemnified party's consent (which consent shall not 12 be unreasonably withheld or delayed) and if the indemnified party unreasonably withholds or delays its 13 consent to any such settlement, then the indemnifying party shall have no further obligation under the 14 applicable indemnity set forth in this Lease with respect to such action or proceeding or other actions or 15 proceedings involving the performance same or related facts.
16 D. If an indemnifying party shall, in good faith, believe that a claim set forth in an 17 Indemnified Party Notice is not or may not be within the scope of its duties the indemnifying party's indemnity set 18 forth in this Lease then, pending determination of that question, the indemnifying party shall not be 19 deemed to be in default under this Agreement, or Lease by reason of its reckless disregard failure or refusal to indemnify and hold 20 harmless any indemnified party therefrom or to pay such costs, expenses and liabilities, but if it shall be 21 finally determined by a court of competent jurisdiction or by arbitration in accordance with Article 25 22 that such claim was within the scope of such indemnifying party's indemnity set forth in this Lease, then 23 such indemnifying party shall be liable for any judgment or reasonable settlement and any reasonable 24 legal fees and expenses incurred by the party entitled to indemnity hereunder. The provisions of this 25 Section 16.01 shall survive the expiration or earlier termination of this Lease.
27 (i) Notwithstanding any provisions of this Lease to the contrary, Landlord 28 shall not be liable to Tenant for Consequential Damages of any kind or nature (including Consequential 29 Damages in respect of (a) any loss of use of the Demised Premises or any Alterations or otherwise, or 30 (b) any loss of use of, or rents from, the Building or any part thereof) in any event whatsoever, even if 31 arising from any act, omission or negligence of Landlord or from the breach by Landlord of its 32 obligations under this Lease.
33 (ii) Notwithstanding any provisions of this Lease to the contrary, except as 34 expressly provided in Section 22.02B hereof, Tenant shall not be liable to Landlord for Consequential 35 Damages of any kind or nature (including Consequential Damages in respect of (i) any loss of use of the 36 Demised Premises or any Alterations or otherwise, or (ii) any loss of use of, or rents from, the Building or 37 any part thereof) in any event whatsoever, even if arising from any act, omission or negligence of Tenant 38 or from the breach by Tenant of its obligations and duties under this AgreementLease.
d) Any indemnification under subsections (a) 39 F. In connection with any claim or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and demand with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between which Tenant is the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the 40 indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with Section 16.01A (even if such claim or demand is groundless, 41 false or fraudulent), Tenant shall not, without obtaining express advance permission from the terms and conditions General 42 Counsel of the proposed settlement Port Authority, raise, assert or maintain any defense involving in any way the jurisdiction 43 of the tribunal over the person of the Port Authority; the immunity of the Port Authority, its 1 Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing 2 provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to statutes regarding suits against the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this AgreementPort Authority.
Appears in 2 contracts
Indemnity. a) In any threatenedSubject to the limitations in subsection 9.2 with respect to the matters specified therein, pending and without duplication of the provisions of the Environmental Indemnity Agreement, Section 2.11 of the Aircraft Security Agreement and Section 3.06 of the Spare Engine Security Agreement, whether or completed actionnot the transactions contemplated hereby shall be consummated, suitthe Company agrees to defend, or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless the Agent, the Issuing Bank and the Lenders, and the officers, directors, employees or associated persons (collectivelyemployees, “its affiliates”) was or is a party or is threatened to be made a party by reason agents and affiliates of the fact that Collateral Subadvisor is Agent, the Issuing Bank and the Lenders (collectively called the "INDEMNITEES") from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or was an investment adviser nature whatsoever (including without limitation the reasonable fees and disbursements of the Fund counsel for such Indemnitees), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including without limitation securities and commercial laws, statutes and rules or regulations), on common law or equitable cause or on contract or otherwise, the Fund and Managerthat may be imposed on, jointly and severallyincurred by, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates or asserted against any losssuch Indemnitee, liability, damage, cost, expenses in any manner arising out of this Agreement or the other Loan -104- 112 Documents or the transactions contemplated hereby or thereby (including attorneys’ fees and accountants’ fees)without limitation the Lenders' agreement to make the Loans hereunder or the use or intended use of the proceeds of any of the Loans) or the statements contained in the commitment letter delivered by the Agent, judgments and amounts paid in settlement actually and reasonably incurred by it the Issuing Bank or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed Lender to the best interests Company with respect thereto or any breach or default by the Company or any Loan Party of any provision of the Fund, and Loan Documents (collectively called the "INDEMNIFIED LIABILITIES"); provided that its conduct does the Company shall not constitute willful misfeasance, bad faith or have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise (i) solely from the gross negligence or reckless disregard willful misconduct of its obligations that Indemnitee as determined by a final judgment of a court of competent jurisdiction, (ii) constitute ordinary and duties under this Agreement. The termination usual operating or overhead expenses of any actionan Indemnitee (excluding, suit or proceeding by judgmentwithout limitation, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating any outside counsel, consultant or agent) and defending (iii) arise out of the breach of any claims, demand obligation or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms representation of an Indemnitee in this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may beany other Loan Document. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to defend, suit or proceeding referred to in subsection (a) or (c) aboveindemnify, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to preceding sentence may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partypublic policy, the Fund and/or Manager, jointly Company shall contribute the maximum portion that it is permitted to pay and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse satisfy under applicable law to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Revolving Credit Agreement (America West Airlines Inc), Revolving Credit Agreement (America West Airlines Inc)
Indemnity. a) In any threatenedArticle 13 of the Lease is hereby deleted in its entirety and replaced with the following:
13.1. Notwithstanding Tenant’s obligation to provide and maintain insurance, pending or completed actionTenant shall defend, suitindemnify and hold harmless Landlord, or proceeding to which Collateral Subadvisor, and its shareholdersdirectors, officers, directorsemployees, employees or associated persons agents, successors, assigns and affiliates from and against all claims, damages, costs, expenses, liabilities, actions, suits, fines and penalties (collectivelyincluding, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including without limitation reasonable attorneys’ fees and accountants’ feesexpenses) of any kind or nature whatsoever, suffered or incurred by any of such indemnified parties, based upon or arising out of any third party claim for personal injury (including death), judgments suffered by any person (including employees of Tenant) and amounts paid loss of or damage to any property (including loss of use thereof), in settlement actually and reasonably incurred either case proximately caused by it or arising out of Tenant’s use or occupancy of the Premises including, without limitation (i) acts or omissions of Tenant or its affiliates in connection with any action, suit agents or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in employees or not opposed to (ii) the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination breach of any actioncovenant, suit representation or proceeding by judgmentwarranty of Tenant contained in this Lease. Nothing in this indemnity shall require Tenant to defend, order or settlement shall notindemnify and/or hold Landlord from and against claims, of itselfdamages, create a presumption that Collateral Subadvisor acted in good faith costs, expenses, liabilities, actions, suits, fines and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and penalties to the extent that the person on whose behalf such expenses same are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12caused by L▇▇▇▇▇▇▇’s negligence or willful misconduct.
c) Collateral Subadvisor agrees to indemnify13.2. Landlord shall defend, defend indemnify and hold harmless the Fund, Manager Tenant and Manager’s membersits directors, officers, directorsemployees, employees or associated persons (collectivelyagents, “its affiliates”) successors, assigns and affiliates from and against any lossall claims, liabilitydamages, damagecosts, costexpenses, expenses liabilities, actions, suits, fines and penalties (including without limitation reasonable attorneys’ fees and accountants’ feesexpenses) of any kind or nature whatsoever, suffered or incurred by any of such indemnified parties, based upon or arising out of any third party claim for personal injury (including death), judgments suffered by any person (including employees of Landlord) and amounts paid loss of or damage to any property (including loss of use thereof), in settlement actually and reasonably incurred either case proximately caused by it or arising out of the following: (i) acts or omissions of Landlord, or its affiliates by reason agents, employees or contractors or (ii) the breach of any act covenant, representation or omission warranty of Collateral Subadvisor relating Landlord contained in this Lease only after written notice thereof and reasonable opportunity to cure. Nothing in this indemnity shall require Landlord to defend, indemnify and/or hold Tenant harmless from and against claims, damages, costs, expenses, liabilities, actions, suits, fines and penalties to the Fund (including costs and expenses extent the same are caused by the acts or omissions of investigating and defending any claimsTenant, demand its invitees, customers, agents, employees or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreementcontractors.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be13.3. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claimof a claim covered by an indemnity hereunder, dispute or litigation arises between Collateral Subadvisor and any the damaged party other than shall promptly notify the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a indemnifying party to in writing of such claim, dispute and the indemnifying party shall thereupon either pay or litigation by undertake to defend such other party, Collateral Subadvisor shall defend any actions brought in connection therewith claim on behalf of the Fund and/or Manager each of whom agree to cooperate in damaged party, and the indemnifying party shall hold the damaged party free and harmless from such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other partyclaim. If any claim, dispute the indemnifying party fails to pay or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party undertake to defend against such claim, dispute then the damaged party may either pay, settle or litigation by contest such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), ifclaim, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by case the indemnifying party shall reimburse the damaged party for any legal or any other expenses reasonably all reasonable payments made and all reasonable costs and expenses, including reasonable attorney’s fees, incurred in connection with investigating the settlement or defending contest of such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if shall hold the Indemnitor successfully negotiates a settlement damaged party free and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementharmless therefrom.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.”
Appears in 2 contracts
Sources: Lease Agreement (PishPosh, Inc.), Lease Agreement (PishPosh, Inc.)
Indemnity. a) In The Borrower agrees to indemnify and hold each Lender and the Administrative Agent harmless, from, any threatened, pending or completed action, suitand all recording and filing fees and any and all liabilities with respect to, or proceeding resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to which Collateral Subadvisorbe payable in connection with the execution and delivery of, its shareholdersor consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents with respect to the Borrower, and to indemnify and hold each Lender and the Administrative Agent (and their respective affiliates, directors, officers, directors, agents and employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of collectively with the fact that Collateral Subadvisor is or was an investment adviser of Administrative Agent and the Fund or otherwiseLenders, the Fund “Indemnified Parties”)) harmless from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all other liabilities, liabilityobligations, damagelosses, costclaims, damages, penalties, actions, judgments, suits, reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind or nature whatsoever (including attorneys’ but not limited to reasonable attorney’s fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it costs) arising directly or its affiliates indirectly from or in connection with the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any actionsuch other documents, suit from the Borrower’s use of proceeds or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests commitment, from failure of the FundBorrower to comply with rules, regulations and laws regarding the business of mutual funds, from false or incorrect representations or warranties or other information provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under connection with this Agreement, or by reason from failure of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel Borrower to comply with covenants in a written opinion that indemnification is proper timely manner (all the foregoing in the circumstances because the party claiming indemnification (this Section 9.5(c), collectively, the “Indemniteeindemnified liabilities”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent provided, that the Indemnitee or its affiliates Borrower shall have been successful on the merits or otherwise in defense of no obligation hereunder to any action, suit or proceeding referred Indemnified Party with respect to in subsection indemnified liabilities arising from (aA) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partyIndemnified Party, the Fund and/or Managergross negligence or willful misconduct of such Indemnified Party as finally determined in a nonappealable judgment by a court of competent jurisdiction, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor (B) disputes arising between or its principals, each of whom agree to cooperate in such defense among the Lenders and the Fund and/or ManagerAdministrative Agent, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and or (C) with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying partyIndemnified Party, the indemnified party may retain failure of such Indemnified Party (and its own counsel in connection Affiliates) to comply with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimRequirement of Law.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Indemnity. (a) In any threatenedaddition to the payment of expenses pursuant to Section 9.2, pending whether or completed actionnot the Transactions shall be consummated, suitCompany agrees to defend (subject to Indemnitees’ selection of counsel), or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless Agents and Lenders, officersand the Officers, directors, employees trustees, employees, agents, advisors and Affiliates of Agents and Lenders (collectively called the “Indemnitees”), from and against any and all Indemnified Liabilities (as hereinafter defined); provided that Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence or associated persons willful misconduct of that Indemnitee or its related parties as determined by a final judgment of a court of competent jurisdiction.
(b) As used herein, “Indemnified Liabilities” means, collectively, “its affiliates”) was any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, actions, judgments, suits, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or is a party other response action necessary to remove, remediate, clean up or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against ▇▇▇▇▇ any loss, liability, damage, costHazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including attorneys’ the reasonable and documented out-of-pocket fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial Proceeding commenced or threatened by any Person, suit whether or proceeding not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against Collateral Subadvisor or its affiliates mayany such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the sole discretion of Manager, be paid by other Loan Documents or the Fund and/or Manager in advance Transactions (including Lenders’ agreement to make the Loans hereunder or the use or intended use of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, proceeds thereof as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason a result of any act or omission omission, whether rightful or wrongful, of any present or future de jure or de facto Government Authority, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral Subadvisor or the enforcement of the Guaranties), (ii) the statements contained in the commitment letter delivered by any Lender to Company with respect thereto or (iii) any Environmental Claim or any Hazardous Materials Activity relating to the Fund (including costs and expenses or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of investigating and defending Company or any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the IndemnitorSubsidiaries; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement except to the extent such loss, liability, damage, cost Environmental Claim or expense (including reasonable attorneys’ and accountants’ fees) was caused Hazardous Materials Activity arises solely from the gross negligence or willful misconduct of Indemnitee as determined by or resulted from a material violation final judgment of this Agreement by the Indemnitor or violation a court of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementcompetent jurisdiction.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Indemnity. (a) In Charterers hereby indemnify Owners and shall keep Owners fully indemnified at all times whether during the currency of this Charter or at any threatenedtime in respect of events arising during the currency of this Charter against:
(i) All costs and expenses of operating and maintaining the Vessel and of operating, pending maintaining and replacing all parts including (but without prejudice to the generality of the foregoing) all fuel, oil, port charges, fees, taxes, levies, fines, penalties, charges, insurance premiums, victualing, crew, navigation, ▇▇▇▇▇▇▇, operating and freight expenses and all other outgoings whatsoever payable by Owners or completed action, suitCharterers in respect of the possession or operation of the Vessel or any part thereof, or proceeding the purchase, ownership, delivery, chartering, possession and operation, import to or export from any country, return, sale or disposition of the Vessel or any part thereof or upon the hire, receipts or earnings arising therefrom (other than Owners Taxes or documentation costs except as otherwise provided in Clause 6(a)) which Collateral Subadvisorshall be promptly paid by Charterers;
(ii) All liabilities, its shareholdersclaims, officersproceedings (whether civil or criminal), directorspenalties, employees fines or associated persons (collectivelyother sanctions, “its affiliates”) was or is a party or is threatened to judgments, charges, taxes, impositions, liens, salvage, general average, costs and expenses whatsoever which may at any time be made a or claimed by Charterers or any employee, servant, agent or sub-contractor, passenger, owner, shipper, consignee and receiver of goods or any third party (including governments or other authorities) or by reason their respective dependents arising directly or indirectly in any manner out of the fact that Collateral Subadvisor is design, construction, possession, management, repair, certification, ▇▇▇▇▇▇▇, provisioning, supply or was an investment adviser servicing of the Fund Vessel (whether at sea or otherwisenot) or the chartering thereof hereunder whether such liability, claims, proceedings, penalties, fines, sanctions, judgments, charges, taxes, impositions, liens, salvage, general average, cost or expenses may be attributable to any defect in the Fund Vessel or the design, construction, testing or use thereof or from any maintenance, service, repair, overhaul or otherwise and Manager, jointly regardless of when or where the same shall arise and severally, shall whether or not the Vessel or the relevant part thereof is in the possession or control of Charterers (other than Owners Taxes or documentation costs except as otherwise provided in Clause b(a)); and
(iii) Charterers accept all liability for oil or other pollution damage resulting from Charterers’ operation of the Vessel under this Charter and agree to promptly indemnify and hold harmlessOwners harmless from and against any and all losses, damages and expenses which Owners may incur as a result of any oil or other pollution damage resulting from Charterers’ operation of the Vessel under this Charter, including, but not limited to, Owners’ liability under the Oil Pollution Act of 1990, as amended, and/or the laws of any other jurisdiction relating to oil spills.
(iv) Owners shall use good faith efforts to notify Charterers promptly of any tax for which it may seek indemnity. Charterers shall, subject to subsection the prior written approval of Owners (d) belowsuch approval not to be unreasonably withheld), Collateral Subadvisor and its affiliates be entitled to take action in the name of Owners at Charterers’ expense against any taxing authority in respect of any taxes for which Charterers have indemnified such Owners, and Owners agree to reasonably cooperate with Charterers in taking such action. If as a result of any such action any moneys are received that are attributable to such indemnified taxes (including any interest thereon paid by such taxing authority) the same shall be recovered by Charterers.
(b) Without prejudice to its generality, the provisions of this sub-clause shall extend to claims of persons (including governments or other bodies whether corporate or otherwise) who have suffered or allege that they have suffered loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it damage or its affiliates injury in connection with any actionthing done or not done by the Vessel, suit including in connection with any oil or proceeding if Collateral Subadvisor acted in good faith other substance emanating or threatening to emanate from the Vessel and in a manner it reasonably believed shall extend to levies, impositions, calls, or contributions on or required to be made by Owners during or in or not opposed to the best interests respect of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the FundCharter Period.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court If any obligation of Charterers under the foregoing sub-clause or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection under subclause (d) below shall not apply and be discharged when due, Charterers shall on demand forthwith pay to Owners not only the party obligated amount of such obligation but also interest thereon at the Default Rate from the date Owners paid the same to indemnify the other party date of reimbursement by Charterers (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewithafter as well as before judgment).
e(d) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree Vessel becoming a wreck or obstruction to cooperate in such defense and Collateral Subadvisor navigation, Charterers shall indemnify Owners against all losses, costs, damages and hold harmless the Fund and Manager from and with expenses which Owners may in consequence thereof incur including those incurred in respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal removal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None destruction of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment wreck or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial obstruction under statutory or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementother powers.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Bareboat Charter Agreement (Calpetro Tankers Bahamas Iii LTD), Bareboat Charter Agreement (California Petroleum Transport Corp)
Indemnity. (a) In any threatenedEach Loan Party shall and does hereby jointly and severally indemnify and defend Agent, pending or completed actionLenders, suitand their respective successors and assigns, or proceeding to which Collateral Subadvisor, its shareholdersand their respective directors, officers, directorsemployees, employees or associated persons consultants, attorneys, agents and affiliates (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was each an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met from and against all liabilities, losses, damages, expenses, penalties, claims, actions and suits (including, without limitation, related reasonable attorneys’ fees and, without duplication, the applicable standard allocated costs of conduct set forth in subsection (ain-house legal counsel) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionkind whatsoever arising, suit directly or proceeding referred to in subsection (a) indirectly, which may be imposed on, incurred by or (c) above, asserted against such Indemnitee as a result of or in defense of any claim, issue or matter thereinconnection with this Agreement, the immediately preceding sentence other Debt Documents or any of this subsection (d) shall not apply and the party obligated to indemnify the other party transactions contemplated hereby or thereby (the “IndemnitorIndemnified Liabilities”) ); provided that, no Loan Party shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that have any claim, dispute or litigation arises between Collateral Subadvisor and obligation to any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and Indemnitiee with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement Indemnified Liabilities to the extent such loss, liability, damage, cost Indemnified Liabilities arise from the gross negligence or expense (including reasonable attorneys’ and accountants’ fees) was caused willful misconduct of such Indemnitee as determined by or resulted from a material violation final non-appealable judgment of this Agreement by the Indemnitor or violation a court of the standard of conduct set forth hereincompetent jurisdiction. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification This provision shall survive the termination of this Agreement.
h(b) Collateral Subadvisor acknowledges as Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other applicable governmental authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Loan, then on notice thereof and demand therefor by such Lender to the indemnities Borrower, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Loans shall terminate and (ii) Borrower shall prepay in full all outstanding LIBOR Loans owing to such Lender, together with interest accrued thereon, unless the Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such LIBOR Loans into Base Rate Loans.
(c) To induce Lenders to provide the LIBOR option on the terms provided herein, if (i) any LIBOR Loans are repaid in whole or in part prior to the last day of any calendar month (whether that repayment is made pursuant to any provision of this Agreement or any other Debt Document or occurs as a result of acceleration, by Manager operation of law or otherwise); (ii) Borrower shall default in payment when due of the principal amount of or interest on any LIBOR Loan; (iii) Borrower shall refuse to accept any borrowing of, or shall request a termination of any borrowing, conversion into or continuation of LIBOR Loans after Borrower has given notice requesting the same in accordance herewith; or (iv) Borrower shall fail to make any prepayment of a LIBOR Loan after Borrower has given a notice thereof in accordance herewith, then Borrower shall indemnify and hold harmless each Lender from and against all losses (other than lost profits), costs and expenses resulting from or arising from any of the foregoing. Such indemnification shall include any loss (excluding loss of margin) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate deposits from which such funds were obtained. For the purpose of calculating amounts payable to a Lender under this subsection, each Lender shall be deemed to have actually funded its relevant LIBOR Loan through the purchase of a deposit bearing interest at LIBOR in an amount equal to the amount of that LIBOR Loan and having a maturity comparable to the relevant calendar month; provided, that each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the Fund to Collateral Subadvisor foregoing assumption shall be inapplicable in utilized only for the event calculation of any liability accruing to amounts payable under this subsection. This covenant shall survive the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach termination of any warranty in this AgreementAgreement and the payment of the Notes and all other amounts payable hereunder.
Appears in 2 contracts
Sources: Loan and Security Agreement (Salient Surgical Technologies, Inc.), Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Indemnity. a) In any threatenedThe Borrower hereby agrees to indemnify, pending or completed actionpay and hold harmless the Administrative Agent, suit, or proceeding to which Collateral Subadvisor, its shareholders, the Lenders and their respective Affiliates and the officers, directors, employees or associated persons employees, trustees, agents, investment advisors, collateral managers, servicers, and counsel of the Administrative Agent, the Lenders and their respective Affiliates (collectively, collectively called the “its affiliatesIndemnitees”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitee) in connection with any actioninvestigative, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundresponse, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilremedial, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit judicial matter or proceeding, if whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by the Administrative Agent or Lenders) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby or by the other Financing Documents (including (i)(A) as a direct or indirect result of the presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from, any property now or previously owned, leased or operated by the Borrower, any other Credit Party or any other Person of any Hazardous Materials or any Hazardous Materials Contamination, (B) arising out of or relating to the extent that offsite disposal of any materials generated or present on any such property or (C) arising out of or resulting from the person on whose behalf environmental condition of any such expenses are paid shall agree property or the applicability of any governmental requirements relating to reimburse the Fund and/or ManagerHazardous Materials, as applicablewhether or not occasioned wholly or in part by any condition, in the accident or event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred caused by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund Borrower or any other Credit Party, (including costs ii) the Transactions and expenses (iii) proposed and actual extensions of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties credit under this Agreement) and the use or intended use of the proceeds of the Loans; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, losses, damages, claims or by reason out-of-pocket expenses resulted from the gross negligence or willful misconduct of such Indemnitee or of any of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections Related Indemnified Persons (a) or (c) above, unless ordered as determined by a final non-appealable judgment of a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (ccompetent jurisdiction), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise undertaking set forth in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) may be unenforceable, the Borrower shall not apply contribute the maximum portion which it is permitted to pay and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated satisfy under applicable Law to the Fund’s business, payment and if the Fund or Manager are made a party to satisfaction of all such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of them. For purposes of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoingparagraph, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.“
Appears in 2 contracts
Sources: Restructuring Support Agreement (Warren Resources Inc), Restructuring Support Agreement (Warren Resources Inc)
Indemnity. a) In any threatenedaddition to all other Indebtedness, pending or completed actionthe Borrower agrees to defend, suitprotect, or proceeding to which Collateral Subadvisorindemnify and hold harmless the Lenders, and all of its shareholdersrespective Affiliates, Subsidiaries, officers, directors, employees or associated persons employees, attorneys, accountants, consultants, agents and any controlling Persons (collectively, collectively the “its affiliatesIndemnified Parties”) was or is a party or is threatened to be made a party from and against any and all losses, claims, damages, liabilities, obligations, penalties, fees, costs, expenses and settlement agreements, joint and several (including, without limitation, reasonable attorneys’ and paralegals’ fees, costs and expenses) incurred by reason any of the fact that Collateral Subadvisor is Indemnified Parties, whether prior to or was an investment adviser from and after the date hereof, as a result of or arising from or relating to (i) the Commitment Letter, (ii) any due diligence effort (including, without limitation, public record search, recording fees, examinations and investigations of the Fund or otherwiseproperties of the Borrower, each Domestic Subsidiary, each Foreign Subsidiary, the Fund Borrower’s operations, each Domestic Subsidiary’s operations, each Foreign Subsidiary’s operations and Managerthe Collateral), jointly negotiation, preparation, execution and/or performance of any of the Loan Documents or of any document executed in connection with the transactions contemplated thereby and severallythe perfection of the Lender’s Liens in the Collateral, shall indemnify maintenance of the Loan by the Lenders, and hold harmlessany and all amendments, subject to subsection modifications, and supplements of any of the Loan Documents or restructuring of the Indebtedness, (diii) belowany suit, Collateral Subadvisor and its affiliates investigation, action or proceeding by any Person, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any lossPerson under any statute, liabilityregulation or common law principle, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it arising from or its affiliates in connection with any actionof the Loan Documents and/or Lender’s furnishing of funds to the Borrower under this Loan Agreement, (iv) the Lenders’ preservation, administration and enforcement of its rights under the Loan Documents and applicable law, including the reasonable fees of the outstanding Indebtedness as attorneys fees if collected by or through an attorney at law and disbursements of counsel for the Lenders in connection therewith, whether suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in brought or not opposed and whether incurred at trial or on appeal, and all costs of repossession, storage, disposition, protection and collection of Collateral, (v) periodic field exams, audits and appraisals performed by the Lenders, as permitted herein; and/or (vi) any matter relating to the best interests financing transactions contemplated by the Loan Documents or by any document executed in connection with the transactions contemplated thereby, other than for such loss, damage, liability, obligation, penalty, fee, cost or expense, any of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or which arise from an Indemnified Parties’ gross negligence or reckless disregard of its obligations and duties under this Agreementwillful misconduct. The termination of No Indemnified Party shall be liable for any action, suit direct or proceeding by judgment, order consequential damages that arise from or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed are related to the best interests Commitment Letter, this Loan Agreement or any of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance Loan Documents. All obligations for indemnification hereunder for all of the final disposition of such actionforegoing losses, suit or proceedingdamages, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Managerliabilities, as applicableobligations, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnifypenalties, defend and hold harmless the Fundfees, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the shall be part of Collateral Subadvisor in the performance of its duties under this AgreementIndebtedness, or secured by reason of its reckless disregard of its obligations the Collateral, and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates chargeable against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf loan accounts of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other partyBorrower. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which The indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification herein shall survive the termination of this Loan Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Loan, Pledge and Security Agreement, Loan, Pledge and Security Agreement (Softech Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, The Seller shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundpay, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager Buyer and Manager’s members, any of its officers, directors, employees or associated persons employees, agents, advisors and Affiliates (collectively, the “its affiliatesIndemnified Parties”) from and against the “Indemnified Liabilities”, which means any lossand all claims, liabilityliabilities, damageobligations, costlosses, damages, penalties, judgments, suits, disbursements and reasonable out-of-pocket costs, and expenses (including reasonable attorneys’ fees and accountants’ fees)disbursements) of any kind whatsoever that may be imposed upon, judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason asserted against any of the Indemnified Parties in any way relating to or arising out of any act of the Repurchase Documents or omission any of Collateral Subadvisor relating the transactions contemplated thereby or the use of proceeds or proposed use of proceeds thereof, provided that to the Fund (including costs extent, if any, that any Indemnified Liabilities are caused by any Indemnified Party’s gross negligence or willful misconduct, the indemnity payable to that Indemnified Party shall be equitably and expenses proportionately reduced, although to the full extent permitted under Applicable Law, such indemnity shall not be reduced on account of investigating and defending any such claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasanceliabilities, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections etc. to any extent (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may beowed, in whole or in part, adverse to the interests under any claim or theory of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, strict liability, damageor (b) caused or contributed to by any Indemnified Party’s sole or concurrent ordinary negligence that does not amount to gross negligence or willful misconduct, cost it being the Seller’s intention to hereby indemnify the Indemnified Parties against their own strict liability and their own sole or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth hereinconcurrent ordinary negligence. Notwithstanding Without limiting the foregoing, the Indemnitor shallBuyer shall not be liable for executing, at all timesfailing to execute, have or for any mistake in the right to offer to settle execution of, such request or instructions in connection with the certification, release or shipment of any mattersLoan Papers, and if except in the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose case of the matter in accordance with the terms and conditions of the proposed settlement Buyer’s gross negligence or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementwillful misconduct.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Sirva Inc), Master Repurchase Agreement (Sirva Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor Lessee agrees to indemnify, defend and reimburse, hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) defend each Indemnitee from and against any lossand all claims, liabilitydamages, damagelosses, costliabilities, expenses (including demands, suits, judgments, causes of action, legal proceedings, whether civil or criminal, penalties, fines and other sanctions, and any attorneys’ ' fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including other reasonable costs and expenses in connection herewith or therewith, including any of investigating and defending any claims, demand the foregoing arising or suit and attorneys’ and accountants’ fees) if such act imposed with or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreementwithout Lessor's fault, or by reason under the doctrine of its reckless disregard absolute or strict liability (any and all of its obligations and duties under this Agreement.
dwhich are hereafter referred to as "Claims") Any indemnification under subsections which in any way may result from, pertain to or arise in any manner out of, or are in any manner related to (a) the Aircraft or this Lease, or the breach of any representation, warranty or covenant made by Lessee hereunder, or (b) the condition, ownership, manufacture, purchase, delivery, non-delivery, lease, acceptance, rejection, possession, return, disposition or use, or operation of the Aircraft either in the air or on the ground during the Term, or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized any defect in the specific case and only upon a determination Aircraft (whether or not discovered or discoverable by independent legal counsel in a written opinion that indemnification Lessee or Lessor) arising from the material or any articles used therein or from the design, testing, or use thereof or from any maintenance, service, repair, overhaul, or testing of the Aircraft, whether or not the Aircraft is proper in the circumstances because possession of Lessee, and regardless of where the party claiming indemnification (Aircraft may then be located during the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) aboveTerm, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee any transaction, approval, or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred document contemplated by it this Lease or its affiliates given or entered into in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitorherewith; provided, however, that should Lessee shall be subrogated to all rights and remedies which Lessor may have against the Indemnitor refuse Manufacturer of the Aircraft and its subcontractors or any other Person as to consent any such Claims, but only to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination extent that Lessee satisfies its indemnification obligation to Lessor hereunder with respect to reimbursement by such Claims. Lessee hereby waives, and releases each Indemnitee from, any Claims (whether existing now or hereafter arising) for or on account of or arising or in any way connected with injury to or death of personnel of Lessee or loss or damage to property of Lessee or the Indemnitor loss of use of any loss, liability, damage, cost property which may result from or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee arise in connection with such settlement any manner out of or in relation to the extent such lossownership, liabilityleasing, damagecondition, cost use or expense (including reasonable attorneys’ and accountants’ fees) was operation of the Aircraft, either in the air or on the ground, or which may be caused by any defect in the Aircraft from the material or resulted any article used therein or from a material violation of this Agreement by the Indemnitor design or violation testing thereof, or use thereof, or from any maintenance, service, repair, overhaul or testing of the standard Aircraft regardless of conduct set forth herein. Notwithstanding when such defect may be discovered, whether or not the foregoing, Aircraft is at the Indemnitor shall, at all times, have time in the right to offer to settle any matterspossession of Lessee, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose regardless of the matter in accordance with the terms and conditions location of the proposed settlement Aircraft at any such time. The indemnities contained in this Section 13 shall continue in full force and effect notwithstanding the expiration or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the other termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that Lease and are expressly made for the indemnities provided in this Agreement by Manager benefit of and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused enforceable by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreementeach Indemnitee.
Appears in 2 contracts
Sources: Aircraft Lease Agreement (Frost Hanna Mergers Group Inc), Aircraft Lease Agreement (Frost Hanna Mergers Group Inc)
Indemnity. a) In any threatenedThe Borrower further agrees to defend, pending protect, indemnify, and hold harmless the Agent and each and all of the Lenders and each of their respective Affiliates, and each of such Agent's, Lender's or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, Affiliate's respective officers, directors, employees or associated persons trustees, investment advisors, employees, attorneys and agents (collectively, “its affiliates”the "INDEMNITEES") was from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses of any kind or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (including, without limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding, suit whether or proceeding not any of such Indemnitees shall be designated a party thereto), imposed on, incurred by, or asserted against Collateral Subadvisor such Indemnitees in any manner relating to or arising out of:
(i) this Agreement or any of the other Transaction Documents, or any act, event or transaction related or attendant thereto or to the making of the Advances hereunder, the management of such Advances, the use or intended use of the proceeds of the Advances hereunder, or any of the other transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages, personal injury, death, punitive damages, economic damages, consequential damages, treble damages, intentional, willful or wanton injury, damage or threat to the environment, natural resources or public health or welfare, costs and expenses (including, without limitation, attorney, expert and consulting fees and costs of investigation, feasibility or remedial action studies), fines, penalties and monetary sanctions, interest, direct or indirect, known or unknown, absolute or contingent, past, present or future relating to violation of any Environmental, Health or Safety Requirements of Law arising from or in connection with the past, present or future operations of the Borrower, its Subsidiaries or any of their respective predecessors in interest, or, the past, present or future environmental, health or safety condition of any respective property of the Borrower or its affiliates maySubsidiaries, in the sole discretion presence of Manager, be paid by the Fund and/or Manager in advance asbestos-containing materials at any respective property of the final disposition Borrower or its Subsidiaries or the Release or threatened Release of such action, suit or proceeding, if and to any Contaminant into the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons environment (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ feesthe "INDEMNIFIED MATTERS"), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse Borrower shall have no obligation to consent to a settlement approved by the Indemnitee, the an Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination hereunder with respect to reimbursement Indemnified Matters caused by or resulting from the willful misconduct or Gross Negligence of such Indemnitee with respect to the Transaction Documents, as determined by the Indemnitor final non-appealed judgment of a court of competent jurisdiction. If the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any losslaw or public policy, liabilitythe Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, damage, cost or expenses (including reasonable attorneys’ to the payment and accountants’ fees) satisfaction of all Indemnified Matters incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementIndemnitees.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: 364 Day Finance Facility Agreement (American National Can Group Inc), 5 Year Finance Facility Agreement (American National Can Group Inc)
Indemnity. a) In any threatenedPledgor agrees to indemnify, pending or completed actionreimburse and hold the Lender --------- and its successors, suitassigns, or proceeding to which Collateral Subadvisoremployees, its shareholders, officers, directors, employees or associated persons agents and servants (collectively, “its affiliates”"Indemnitees") was harmless from and against any and all liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs and expenses (including, without limitation, attorneys' fees and expenses and the allocated costs of internal counsel) of whatsoever kind and nature imposed on, asserted against or is a party or is threatened to be made a party incurred by reason any of the fact that Collateral Subadvisor is Indemnitees in any way relating to or was an investment adviser arising out of this Agreement or the other Loan Documents or in any other way connected with the administration of the Fund transactions contemplated hereby or otherwisethe enforcement of any of the terms hereof, or the preservation of any rights hereunder, or in any way relating to or arising out of the manufacture, processing, ownership, ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of the Pledged Collateral (including, without limitation, latent or other defects, whether or not discoverable, any claim for patent, trademark, trade secret or copyright infringement), the Fund and Managerviolation of the laws of any country, jointly and severallystate or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitee)), or property damage, or contract claim; provided that Pledgor shall indemnify and hold harmlesshave no obligation to an Indemnitee hereunder to the extent it is finally judicially determined that such indemnified liabilities arise solely from the gross negligence or willful misconduct of that Indemnitee. Upon written notice by any Indemnitee of the assertion of such a liability, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liabilityobligation, damage, costinjury, expenses (including attorneys’ fees and accountants’ fees)penalty, judgments and amounts paid in settlement actually and reasonably incurred by it claim, demand, action, judgment or its affiliates in connection with suit, Pledgor shall assume full responsibility for the defense thereof. If any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests arising from any of the Fundforegoing is brought against any Indemnitee, Pledgor shall, if requested by such Indemnitee, resist and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any defend such action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed cause the same to be in or not opposed resisted and defended by counsel reasonably satisfactory to such Indemnitee. Each Indemnitee shall, unless any other Indemnitee has made the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, request described in the sole discretion preceding sentence and such request has been complied with, have the right to employ its own counsel (or internal counsel) to investigate and control the defense of Manager, any matter covered by the indemnity set forth in this Section 13 and the fees and expenses of such counsel shall be paid by Pledgor; provided that, only to the Fund and/or Manager in advance extent that no conflict exists between or among the Indemnitees as reasonably determined by the Indemnitees, Pledgor shall not be obligated to pay the fees and expenses of the final disposition of more than one counsel for all Indemnitees as a group with respect to any such matter, action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Intellectual Property Security Agreement (Navisite Inc), Intellectual Property Security Agreement (Navisite Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, The Makers shall jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall severally indemnify and hold harmless the Fund Lender, its successors, assigns, officers, shareholders, agents and Manager employees, from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, fines, penalties and liabilities, including, without limitation, reasonable attorneys’ fees and costs, arising out of, connected with respect or resulting from (a) this Note or any of the other Loan Instruments, (b) the Lender’s preservation or attempted preservation of any of the collateral taken pursuant to any amounts awarded of the Loan Instruments, and/or (c) any failure of the security interests and liens granted to such other party. If any claimthe Lender pursuant to the Loan Instruments to be or to remain perfected or to have the priority as contemplated herein and in the Loan Instrument; provided, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partyhowever, the Fund Makers shall not have any obligation to indemnify the Lender for any such claims, actions, suits, proceedings, costs, expenses, damages, fines, penalties and/or Managerliabilities to the extent the same have been caused by or have arisen solely and completely from any gross negligence or willful misconduct committed by the Lender. At the Lender’s request, jointly the Makers shall, at their own cost and severallyexpense, shall defend or cause to be defended any and all such actions or suits that may be brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and against the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), ifLender and, in any claim as to which indemnity is or event, shall satisfy, pay and discharge any and all judgments, awards, penalties, costs and fines that may be availablerecovered against the Lender in any such action, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse plus all attorneys’ fees and costs related thereto to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified extent permitted by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitorlaw; provided, however, that should the Indemnitor refuse to consent to a settlement approved by Lender shall give the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses Makers (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent the Lender seeks indemnification from the Makers under this section) prompt written notice of any such lossclaim, liabilitydemand or suit after the Lender has received written notice thereof, damageand the Lender shall not settle any such claim, cost demand or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted suit, if the Lender seeks indemnification therefor from a material violation of this Agreement by the Indemnitor or violation Makers, without first giving notice to the Makers of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer Lender’s desire to settle any matters, and if obtaining the Indemnitor successfully negotiates a settlement and tenders payment therefor consent of the Makers to the Indemniteesame, which consent the Indemnitee must either use its best efforts Makers hereby agree not to dispose unreasonably withhold. All obligations of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Makers under this section shall survive the termination payment of this Agreementthe Note.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Promissory Note (Sypris Solutions Inc), Promissory Note (Sypris Solutions Inc)
Indemnity. aThe Borrower shall indemnify the Administrative Agent, each Joint Lead Arranger and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) In against, and hold each Indemnitee harmless from, any threatenedand all Liabilities and related expenses, pending including the reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee (not to include allocated costs of internal counsel), incurred by or completed actionasserted against any Indemnitee arising out of, suitin connection with, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees as a result of (i) the execution or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms delivery of this Agreement or involved willful misfeasanceany agreement or instrument contemplated hereby, bad faith or gross negligence on the part of Collateral Subadvisor in the performance by the parties hereto of its duties their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of the Subsidiaries; provided that any such losses, claims, damages, liabilities and expenses arise out of or in connection with such Indemnitee’s acting as Administrative Agent or a Lender under this Agreement, 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, whether brought by reason a third party or by the Borrower or any Subsidiary and regardless of its reckless disregard of its obligations whether any Indemnitee is a party thereto; provided that such indemnity set forth in the foregoing clauses (i), (ii), (iii) and duties under this Agreement.
d(iv) Any indemnification under subsections (a) shall not, as to any Indemnitee, be available to the extent that such Liabilities or (c) above, unless ordered related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to (x) have resulted from (A) the willful misconduct or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard gross negligence of conduct set forth in subsection (a) such Indemnitee or (c), as B) a material breach of the case may be. To the extent that the funding obligation of such Indemnitee or any of such Indemnitee’s Affiliates hereunder, or (y) have not resulted from an act or omission by the Borrower or any of its affiliates Affiliates and have been successful on brought by an Indemnitee against any other Indemnitee (other than any claims against the merits Administrative Agent or otherwise the Joint Lead Arrangers in their capacities or in fulfilling their roles as a Joint Lead Arranger or the Administrative Agent hereunder). The Borrower will not be liable under this Agreement for any amount paid by an Indemnitee to settle any claims or actions if the settlement is entered into without the Borrower’s consent, which consent may not be withheld unless such settlement is unreasonable in light of such claims or actions against, and defenses available to, such Indemnitee. Anything in this Section 9.3(c) to the contrary notwithstanding, the Borrower shall not be liable for the fees and expenses of more than one primary outside counsel for all Indemnitees in connection with the defense of any action, suit action for which indemnification is sought hereunder (provided that if there is an actual or proceeding referred to in subsection (a) or (c) above, or in defense perceived conflict of any claim, issue or matter thereininterest among the Indemnitees, the immediately preceding sentence Borrower shall be liable for the fees and expenses of this subsection (d) shall not apply one additional counsel and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expensesif necessary, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated a single firm of local counsel to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor Indemnitees in each appropriate jurisdiction). The Borrower shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect have no obligation to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties Indemnitee under this Agreement, and if Collateral Subadvisor is made a party Section 9.3(b) for matters for which such Indemnitee has been fully compensated pursuant to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and Agreement. This Section 9.3(b) shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable not apply with respect to default judgmentsTaxes other than any Taxes that represent losses, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; providedclaims, howeverdamages, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of etc. arising from any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementnon-Tax claim.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Vmware, Inc.), Term Loan Credit Agreement (Vmware, Inc.)
Indemnity. a) In any threatenedTenant shall indemnify, pending or completed actiondefend, suitprotect, or proceeding to which Collateral Subadvisorhold harmless, its shareholdersand, at Landlord's option (with such attorneys as Landlord may approve in advance and in writing), defend Landlord, Landlord's Agents, and Landlord's officers, directors, employees or associated persons (collectivelyshareholders, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisepartners, the Fund employees, contractors, property managers, agents and Managermortgagees and other lien holders, jointly from and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses and all Losses (including attorneys’ fees and accountants’ feesas defined below), judgments and amounts paid in settlement actually and reasonably incurred by it whenever such Losses arise, arising from or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections related to: (a) any violation or alleged violation by Tenant or any of Tenant's Parties of any of the requirements, ordinances, statutes, regulations or other laws referred to in this Paragraph 11.b, including, without limitation, the Environmental Laws, whether such violation or alleged violation occurred prior to, on, or after the Commencement Date; (b) any breach of the provisions of this Paragraph 11.b by Tenant or any of Tenant's Parties; or (c) aboveany Hazardous Use on, unless ordered about or from the Premises by a court Tenant or administrative forum, shall be made only as authorized in the specific case and only upon a determination any of Tenant's Parties of any Hazardous Materials (whether or not approved by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (cLandlord under this Lease), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionwhether such Hazardous Use occurred prior to, suit or proceeding referred to in subsection (a) or (c) aboveon, or in defense of any claimafter the Commencement Date. The term "Losses" shall mean all claims, issue or matter thereindemands, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ feesactions, actually and reasonably incurred by it judgments, damages (whether consequential, direct or its affiliates in connection therewith.
e) In the event that any claimindirect, dispute known or litigation arises between Collateral Subadvisor and any party other than the Fund unknown, foreseen or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (eunforeseen), ifpenalties, in any claim as to which indemnity is or may be availablefines, any indemnified party reasonably determines that its interests are or may beliabilities, in whole or in partlosses of every kind and nature (including, adverse to the interests of the indemnifying partywithout limitation, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, property damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee diminution in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.value of
Appears in 2 contracts
Sources: Build to Suit Lease (At Home Corp), Build to Suit Lease (At Home Corp)
Indemnity. a) In addition to the payment of expenses pursuant to Section 8.5, the Borrower shall indemnify, defend and hold harmless the Lender, and any threatenedof its parent corporations, pending or completed actionsubsidiary corporations, suitsuccessor corporations, or proceeding to which Collateral Subadvisor, its shareholders, and all present and future officers, directors, employees or associated persons employees, attorneys and agents of the foregoing (the "Indemnitees") from and against any of the following (collectively, “its affiliates”"Indemnified Liabilities"):
(a) was Any and all transfer taxes, documentary taxes, assessments or is a party or is threatened to be charges made a party by any governmental authority by reason of the fact that Collateral Subadvisor is or was an investment adviser execution and delivery of the Fund Loan Documents or otherwisethe making of the Advances;
(b) Any claims, loss or damage to which any Indemnitee may be subjected if any representation or warranty contained in Section 5.13 proves to be incorrect in any respect or as a result of any violation of the Fund covenant contained in Section 6.12(b) ; and
(c) Any and Managerall other liabilities, jointly losses, damages, penalties, judgments, suits, claims, costs and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against expenses of any loss, liability, damage, cost, expenses kind or nature whatsoever (including attorneys’ the reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel) in connection with the foregoing and any other investigative, administrative or judicial proceedings, whether or not such Indemnitee shall be designated a party thereto, which are imposed on, incurred by or asserted against any such Indemnitee, related to or arising out of or in connection with the making of the Advances and the Loan Documents or the use or intended use of the proceeds of the Advances. Notwithstanding the foregoing, the Borrower shall not be obligated to indemnify any Indemnitee for any Indemnified Liability caused by the bad faith, gross negligence or willful misconduct of such Indemnitee. If any investigative, judicial or administrative proceeding arising from any of the foregoing is brought against any Indemnitee, upon such Indemnitee’s request, the Borrower, or counsel designated by the Borrower and satisfactory to the Indemnitee, will resist and defend such action, suit or proceeding if Collateral Subadvisor acted in good faith to the extent and in a the manner it reasonably believed directed by the Indemnitee, at the Borrower’s sole costs and expense. Each Indemnitee will use its best efforts to be cooperate in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination defense of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to . If the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees foregoing undertaking to indemnify, defend and hold harmless may be held to be unenforceable because it violates any law or public policy, the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating Borrower shall nevertheless make the maximum contribution to the Fund (including costs payment and expenses satisfaction of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated each of the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties Indemnified Liabilities which is permissible under applicable law. The Borrower’s obligation under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Section 8.6 shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in discharge of the event Borrower’s other obligations hereunder for a period of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreementthree (3) years.
Appears in 2 contracts
Sources: Credit and Security Agreement (CPS Technologies Corp/De/), Credit and Security Agreement (CPS Technologies Corp/De/)
Indemnity. (a) In any threatenedSeller shall release, pending or completed actiondefend, suitindemnify and hold harmless Buyer, or proceeding to which Collateral Subadvisor, Affiliates of Buyer and its shareholders, and their respective officers, directors, employees or associated persons shareholders, partners, members, owners, employees, agents, attorneys, Affiliates and advisors (collectivelyeach an “Indemnified Person” and collectively the “Indemnified Persons”), “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwiseagainst, the Fund and Manager, jointly and severally, shall indemnify and hold each Indemnified Person harmless, subject to subsection (d) belowon a net after-Tax basis, Collateral Subadvisor from any and its affiliates against any lossall liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, fees, costs, expenses (including attorneys’ fees reasonable legal fees, charges, and accountants’ feesdisbursements of any counsel for any such Indemnified Person and expenses), judgments and amounts paid in settlement actually and reasonably penalties or fines of any kind that may be imposed on, incurred by it or its affiliates asserted against any such Indemnified Person (collectively, the “Indemnified Amounts”) in any way relating to, arising out of or resulting from or in connection with (i) the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral, the Transactions, any actionMortgaged Property or related property, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed any action taken or omitted to be taken by any Indemnified Person in connection with or not opposed to the best interests under any of the Fundforegoing, and provided that its conduct does not constitute willful misfeasanceor any transaction contemplated hereby or thereby, bad faith or gross negligence any amendment, supplement or reckless disregard of its obligations and duties modification of, or any waiver or consent under this Agreement. The termination or in respect of any actionRepurchase Document, suit any Transaction, any Purchased Asset, any Mortgage Loan Document or proceeding by judgmentany Pledged Collateral, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b(ii) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand actions or suit and attorneys’ and accountants’ feesdamages by an Underlying Obligor or lessee with respect to a Purchased Asset, (iii) if such act any violation or omission materially violated alleged violation of, non–compliance with or liability under any Requirements of Law, (iv) ownership of, Liens on, security interests in or the terms exercise of this Agreement rights or involved willful misfeasance, bad faith or gross negligence on remedies under any of the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding items referred to in subsection the preceding clause (ai), (v) any accident, injury to or death of any person or loss of or damage to property occurring in, on or about any Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (cvi) aboveany use, nonuse or condition in, on or about, or in defense of any claimpossession, issue alteration, repair, operation, maintenance or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be availablemanagement of, any indemnified party reasonably determines that its interests are Mortgaged Property or may beon the adjoining sidewalks, in whole curbs, parking areas, streets or in partways, adverse (vii) any failure by Seller to the interests of the indemnifying partyperform or comply with any Repurchase Document, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal Mortgage Loan Document or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.Purchased Asset,
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.), Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Indemnity. a) In Whether or not the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold harmless the Purchasers and any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, subsequent holder of any of the Notes and the officers, directors, and employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of Purchasers and such holders (collectively called the Fund or otherwise, the Fund "INDEMNITEES") from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ the fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitee) in connection with any actioninvestigative, suit administrative or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in judicial proceeding, whether or not opposed to the best interests such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of the FundCompany, and provided the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by the Purchasers) asserting any right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby or by the other Financing Documents and the use or intended use of the proceeds of the Notes, except that its conduct does not constitute willful misfeasance, bad faith or the Company shall have no obligation hereunder to an Indemnitee with respect to any liability resulting from the gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition willful misconduct of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise undertaking set forth in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) may be unenforceable, the Company shall not apply contribute the maximum portion which it is permitted to pay and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated satisfy under applicable law to the Fund’s business, payment and if the Fund or Manager are made a party to satisfaction of all such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Navisite Inc), Note Purchase Agreement (Cmgi Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding The Borrower agrees to which Collateral Subadvisor, its shareholdersindemnify the Administrative Agent and each of the Banks and their respective Affiliates and the directors, officers, directorsemployees, employees or associated agents, advisors and controlling persons of each of the foregoing (collectivelyeach such Person, an “its affiliatesIndemnitee”) was against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees and expenses, incurred by or is asserted against any Indemnitee arising out of, in any way connected with, or as a party result of (i) the execution or is threatened to be made a party delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by reason the parties thereto of their respective obligations hereunder or the consummation of the fact that Collateral Subadvisor is or was an investment adviser transactions contemplated hereby, (ii) the use of the Fund proceeds of the Loans or otherwise(iii) any claim, the Fund and Managerlitigation, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit investigation or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed relating to any of the foregoing; provided that such indemnity shall not, as to any Indemnitee, be in or not opposed available to the best interests extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the Fund, and provided that its conduct does not constitute willful misfeasancegross negligence, bad faith or gross negligence willful misconduct of such Indemnitee. In the case of an investigation, litigation or reckless disregard other proceeding to which the indemnity in this Section 11.10 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its obligations and duties under this Agreement. The termination of any actiondirectors, suit security holders or creditors (other than in the case where such litigation or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid is brought by the Fund and/or Manager in advance Borrower and the Borrower prevails), an Indemnitee or any other person or an Indemnitee is otherwise a party thereto. In no event, however, shall any Indemnitee or any Loan Party 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); provided that nothing herein shall limit the final disposition of such action, suit or proceeding, if Loan Parties’ indemnity and reimbursement obligations to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with any Indemnitee with respect to which the person on whose behalf such expenses are paid applicable Indemnitee is entitled to indemnification hereunder. This Section 11.10 shall agree not apply with respect to reimburse the Fund and/or ManagerTaxes other than any Taxes that represent losses, as applicableclaims, in the event indemnification is not permitted under damages etc. arising from any non-Tax claim. The provisions of this Section 12.
c) Collateral Subadvisor agrees to indemnify11.10 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, defend and hold harmless the Fundconsummation of the transactions contemplated hereby, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason the repayment of any act of the Loans, the reduction or omission cancellation of Collateral Subadvisor relating to the Fund (including costs and expenses Total Commitment, the invalidity or unenforceability of investigating and defending any claims, demand term or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms provision of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreementany Note, or any investigation made by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any Banks. All amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties due under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and Section 11.10 shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred payable in connection with investigating or defending such claimimmediately available funds upon written demand therefor.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Avon Products Inc), Revolving Credit Agreement (Avon Products Inc)
Indemnity. a) In any threatenedLessee shall defend, pending or completed action, suit, or proceeding to which Collateral Subadvisorindemnify and hold harmless Lessor, its shareholderssubsidiaries and affiliated companies, their officers, directorsagents and employees against all loss, employees lia- bility and expense, including reasonable attorney's fees, incurred by any such individual or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party entity by reason of bodily injury including death, and property damage, sustained by any person or persons, including but not limited to the fact that Collateral Subadvisor is or was an investment adviser officers, agents and employees of ▇▇▇▇▇▇, as a result of the Fund maintenance, use, operation, storage, erections, mantling, dismantling, servicing, transportation, to the extent not caused by Lessor’s negligence or willful misconduct, or a pre-existing condition of the equipment. Further, Lessee shall defend, indemnify and hold harmless Lessor, its subsidiaries and affiliated companies, their officers, agents, and employees against all loss, liability and equipment costs, in- cluding reasonable outside attorneys' fees, incurred by any such individual or entity by reason of any damage sustained by any person or persons, including but not limited to the officers, agents, and employees of Lessee, as a result of any pollution liability claims or environmental impairment claim made as a result of the Lessee generating, stor- ing, disposing of any hazardous substances, hazardous material, toxic substances, or any additional substances or materials commonly described as hazardous substances. The provisions of this Paragraph 6 shall continue in full force and effect notwithstanding the expiration of termination of this Agreement for any reason. Not withstanding any other provision set forth in this agreement, nothing contained in this agreement shall be construed as a waiver of Lessee's right to sovereign immunity under Florida law, if ap- plicable, and/or the limits of the Lessee's liability under Section 785.28 of the Florida statutes, or other limitations imposed on Lessee;s potential liability under state or federal law regardless of whether any such obligations are based in tort, contract, statute, strict liability, negligence, product liability or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests obligations of the Fundtown and the town's members, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s membersofficials, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid agents under this indemnification provision shall be limited in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) same manner that would have applied if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreementobligations were based on, or by reason of its reckless disregard of its obligations arose out of, an action at law or recover damages in tort and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) abovewere subject to section 768.28, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c)Florida Statutes, as that section existed at the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination inception of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Indemnity. a) In any threatenedThe Borrowers further agree to defend, pending or completed actionprotect, suitindemnify, or proceeding to which Collateral Subadvisorand hold harmless each Agent and each of the Lenders and each of their respective Affiliates, its shareholders, and their respective officers, directors, employees employees, attorneys and agents (including, without limitation, those retained in connection with the satisfaction or associated persons attempted satisfaction of any of the conditions set forth in Article V) (collectively, “its affiliates”the "Indemnitees") was from and against any and all liabilities, obligations, losses (other than loss of profits), damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisenature whatsoever (excluding any taxes and including, without limitation, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any actioninvestigative, suit administrative or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in judicial proceeding, whether or not opposed such Indemnitees shall be designated a party thereto), imposed on, incurred by, or asserted against such Indemnitees in any manner relating to or arising out of (a) this Agreement, the best interests Notes, the other Loan Documents, or any act, event or transaction related or attendant thereto, the making of the FundLoans, the management of such Loans, the use or intended use of the proceeds of the Loans, or any of the transactions contemplated by the Loan Documents, or (b) any Liabilities and provided that Costs under federal, state or local environmental, health or safety laws, regulations or common law principles arising from or in connection with the past, present or future operations of any Borrower or any of its conduct does not constitute predecessors in interest, or, the past, present or future environmental condition of any Property of any Borrower, the presence of asbestos-containing materials at any Property of any Borrower or the Release or threatened Release of any Contaminant into the environment from any Property of any Borrower (collectively, the "Indemnified Matters"); provided, however, the Borrowers shall have no obligation to an Indemnitee hereunder with respect to Indemnified Matters caused by or resulting from the willful misfeasance, bad faith misconduct or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or ManagerIndemnitee, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered determined by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel of competent jurisdiction in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) final non-appealable judgment or (c), as the case may beorder. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to indemnify, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to preceding sentence may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other partypublic policy, the Fund and/or ManagerBorrowers shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Matters incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementIndemnitees.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (General Inspection Laboratories Inc), Credit Agreement (General Inspection Laboratories Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding to which Collateral SubadvisorTenant hereby indemnifies and shall defend and hold Landlord, its shareholders, officers, directors, employees employees, agents and contractors harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or associated persons losses (collectivelyincluding, “its affiliates”) was or is a party or is threatened to be made a party by reason without limitation, diminution in value of the fact that Collateral Subadvisor is Premises or was an investment adviser any portion of the Fund Project, damages for the loss or otherwiserestriction on use of rentable or usable space or of any amenity of the Premises or the Project, damages arising from any adverse impact on marketing of space in the Fund Premises or the Project, and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts sums paid in settlement actually of claims, attorneys' fees, consultant fees and reasonably expert fees) which arise during or after the Lease term as a result of Tenant's breach of its obligations pursuant to Section 30(a). This indemnification of Landlord by Tenant includes, without limitation, costs incurred by it or its affiliates in connection with any actioninvestigation of site conditions or any cleanup, suit remedial, removal, or proceeding if Collateral Subadvisor acted restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Materials present in good faith and in the air, soil or ground water above, on, or under the Premises which arise during or after the Lease term as a manner it reasonably believed to be in or not opposed to the best interests result of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard Tenant's breach of its obligations and duties under this Agreementpursuant to Section 30(a). The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding Without limiting the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to presence of any Hazardous Materials on the IndemniteePremises, the Indemnitee must either use its best efforts to dispose Building, the Project or any adjacent property, caused or permitted by Tenant results in any contamination of the matter Premises, the Project or any adjacent property, Tenant shall promptly take all actions at its sole expense and in accordance with applicable law as are necessary to return the terms and conditions Premises, the Project or any adjacent property, to the condition existing prior to the time of such contamination, provided that Landlord's approval of such action shall first be obtained, which approval shall not unreasonably be withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the proposed settlement Premises or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementProject.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Lease Agreement (Equinix Inc), Lease Agreement (Equinix Inc)
Indemnity. a) In any threatenedTenant for itself and its successors and assigns undertakes to protect, pending or completed actionindemnify, suit, or proceeding to which Collateral Subadvisorsave and defend Landlord, its shareholdersagents, employees, directors, officers, directorsshareholders, employees affiliates, consultants, independent contractors, successors and assigns (collectively the "Indemnitees") harmless from any and all liability, loss, damage and expense, including reasonable attorneys' fees, claims, suits and judgments that Landlord or associated persons (collectivelyany other Indemnitee, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund whether as Landlord or otherwise, may suffer as a result of, or with respect to:
A. The violation by Tenant or Tenant's agents, employees, invitees, licensees or contractors of any Environmental Law after the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection earlier of (di) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests date of the Fundgranting of possession or occupancy of the Premises to Tenant, and provided that its conduct does not constitute willful misfeasanceor (ii) the Lease Commencement Date, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination including the assertion of any action, lien thereunder and any suit brought or proceeding judgment rendered regardless of whether the action was commenced by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to citizen (as authorized under the best interests of the Fund.
bEnvironmental Laws) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.a government agency;
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. B. To the extent that caused, directly or indirectly by Tenant or Tenant's agents, employees, invitees, licensees or contractors, any spill or release of or the Indemnitee or its affiliates have been successful on the merits or otherwise in defense presence of any Hazardous Waste affecting the Project whether or not the same originates or emanates from the Project or any contiguous real estate, including any loss of value of the Project as a result of a spill or release of or the presence of any Hazardous Waste;
C. To the extent caused, directly or indirectly by Tenant or Tenant's agents, employees, invitees, licensees or contractors, any other matter affecting the Project within the jurisdiction of the United States Environmental Protection Agency, the Nevada State Environmental Commission, the Nevada Department of Conservation and Natural Resources, or the Nevada Department of Commerce, including costs of investigations, remedial action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager response costs whether such costs are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement United States Government, the State of Nevada, or any Indemnitee;
D. To the extent caused, directly or indirectly by Tenant or Tenant's agents, employees, invitees, licensees or contractors, liability for clean-up costs, fines, damages or penalties incurred pursuant to the provisions of any applicable Environmental Law; and
E. To the extent such losscaused, liabilitydirectly or indirectly by Tenant or Tenant's agents, damageemployees, cost invitees, licensees or expense (including reasonable attorneys’ and accountants’ fees) was caused by contractors, liability for personal injury or resulted from property damage arising under any statutory or common-law tort theory, including, without limitation, damages assessed for the maintenance of a material violation public or private nuisance, or for the carrying of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any mattersan abnormally dangerous activity, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementresponse costs.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Standard Industrial Lease (Brightpoint Inc), Standard Industrial Lease (Brightpoint Inc)
Indemnity. a) In any threatenedThe Lessees each agree to indemnify and hold harmless the Series 2011-1 Letter of Credit Provider and, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholdersin their capacities as such, officers, directors, employees shareholders, affiliates, controlling persons, employees, agents and servants of the Series 2011-1 Letter of Credit Provider, from and against any and all claims, damages, losses, liabilities, costs or associated persons expenses whatsoever which the Series 2011-1 Letter of Credit Provider may incur or which may be claimed against the Series 2011-1 Letter of Credit Provider by any Person whatsoever (collectively, “its affiliates”including reasonable fees and expenses of counsel) was in each case arising out of or is a party or is threatened to be made a party by reason of or in connection with, or in connection with the fact that Collateral Subadvisor is preparation of a defense of, any investigation, litigation or was an investment adviser proceeding arising out of, relating to or in connection with the execution and delivery of, or payment of any LOC Credit Disbursement or LOC Termination Disbursement payable by the Lessees under the Series 2011-1 Letter of Credit or this Agreement or any other Related Document, or any acts or omissions of any of the Fund Lessees in connection herewith or otherwisetherewith, or any transactions contemplated hereby or thereby (whether or not consummated), or any inaccuracies or alleged inaccuracies in any material respect or any untrue statement or alleged untrue statement of any of the Fund and ManagerLessees contained or incorporated by reference in any Related Document or the omission or alleged omission by any of the Lessees to state therein a material fact necessary to make such statements, jointly and severallyin the light of the circumstances under which they are or were made, shall indemnify and hold harmlessnot misleading, subject except to subsection (d) belowthe extent that such claim, Collateral Subadvisor and its affiliates against any damage, loss, liability, damagecost or expense is caused by the willful misconduct or gross negligence of the Series 2011-1 Letter of Credit Provider or a breach by the Series 2011-1 Letter of Credit Provider (or its agents or employees or any other Person under its control) of its obligations under the Series 2011-1 Letter of Credit, costin each case as determined by a final and non-appealable judgment of a court of competent jurisdiction, expenses (including and provided that any such Lessee shall be required to indemnify the Series 2011-1 Letter of Credit Provider, in connection with prosecuting or defending any such claims, for reasonable attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fundexpenses.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Enhancement Letter of Credit Application and Agreement (Dollar Thrifty Automotive Group Inc), Enhancement Letter of Credit Application and Agreement (Dollar Thrifty Automotive Group Inc)
Indemnity. (a) In Tenant shall have the right to contest the amount or validity of any threatenedlien of the nature set forth in Section 20 hereof or the amount or validity of any tax, pending or completed actionassessment, suitcharge, or proceeding other item to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by Tenant under Section 6 hereof by giving Landlord written notice of Tenant’s intention to do so within twenty (20) days after the Fund and/or Manager in advance of the final disposition recording of such action, suit lien or proceeding, if and at least ten days prior to the extent that the person on whose behalf delinquency of such expenses are paid shall agree to reimburse the Fund and/or Managertax, as applicableassessment, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreementcharge, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c)other item, as the case may be. To In any such case, Tenant shall not be in default hereunder, and Landlord shall not satisfy and discharge such lien nor pay such tax, assessment, charge or other item, as the case may be, until ten (10) days after the final determination of the amount or validity thereof, within which time Tenant shall satisfy and discharge such lien or pay such tax, assessment, charge or other item to the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionheld valid and all penalties, suit or proceeding referred to in subsection (a) or (c) aboveinterest, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates costs in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse satisfaction and discharge of any such lien shall not, in any case, be delayed until execution is had upon any judgment rendered thereon, nor shall the payment of any such tax, assessment, charge or other item, together with penalties interest, and costs, in any case be delayed until sale is made or threatened to consent be made of the whole or any part of the Premises on account thereof, and any such delay shall be a default of Tenant hereunder. In the event of any such contest, Tenant shall protect and indemnify Landlord against all loss, cost, expense, and damage resulting therefrom, and upon notice from Landlord so to do, shall furnish Landlord a settlement approved corporate surety bond payable to Landlord, in one hundred and twenty percent (120%) of the amount of the lien, tax, assessment, charge, or item contested, as the case may be, conditioned upon the satisfaction and discharge of such lien or the payment of such tax, assessment, charge, or other item, and all penalties, interest, and costs in connection therewith.
(b) To the fullest extent allowed by law, Tenant covenants and agrees that Landlord shall not at any time or to any extent whatsoever be liable, responsible or in anywise accountable for any loss, injury, death, or damage to persons or property which, at any time may be suffered or sustained by Tenant or by any person who may at any time be using, occupying, or visiting the IndemniteePremises or be in, on or about the Indemnitee may effect Premises, from any cause whatsoever, except when whether such settlementloss, pay injury, death, or damage shall be caused by or in anywise result from or arise out of the negligent or intentional acts or omissions of Landlord. Furthermore, Tenant shall forever indemnify, defend, hold, and save Landlord free and harmless of, from and against any and all claims, liability, loss, or damage whatsoever, including, without limitation, attorneys’ fees, on account of any such amount loss, injury, death or damage occasioned by any cause other than Landlord’s intentional or grossly negligent acts or omissions. Tenant hereby waives all claims against Landlord for damages to the buildings and improvements now or hereafter located on the Property and to the property of Tenant in, upon or about the Premises, and for injuries to persons or property in, on or about the Premises, from any cause arising at any time, except for any such claims arising from negligent or intentional acts or omissions committed by Landlord. Tenant’s indemnity obligation set forth in settlement as it this Section shall deem reasonable and seek a judicial survive the termination or regulatory determination expiration of this Lease with respect to reimbursement by any claims or liabilities arising out of injury or damage to person or property which occurs during the Indemnitor Term.
(c) Tenant shall indemnify, protect, defend, and hold Landlord, and/or any of Landlord’s officials, officers, employees, agents, departments, and instrumentalities (collectively, the “Indemnified Parties”) harmless from any lossand all claims, liabilitydemands, damagelawsuits, cost petitions for writ of mandamus, alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and other such procedures), judgments, orders, decisions, and other actions and proceedings (whether legal, equitable, declaratory, administrative or expenses adjudicatory in nature) (including reasonable attorneys’ collectively “Actions”) brought against the Indemnified Parties that challenge, attack, or seek to modify, set aside, void, or annul any action of, or any permit or approval issued by, Landlord and/or any of its officials, officers, employees, agents, departments, and accountants’ instrumentalities, for or concerning this Lease, the operation of a recreational vehicle park on the Premises (collectively, the “Project”), or any other permits, entitlements, or approvals related to the Project; Tenant’s obligation to indemnify against the Actions shall apply whether such Actions are brought under the ▇▇▇▇▇ ▇. ▇▇▇▇▇ Act, California Environmental Quality Act, the California Coastal Act, the Planning and Zoning Law, the Subdivision Map Act, Community Redevelopment Law, Code of Civil Procedure Sections 1085 or 1094.5, or any other federal, state, or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. Applicant’s obligation under this condition of approval shall extend to indemnifying and holding harmless the Indemnified Parties against any damages, fees) incurred by the Indemnitee , or costs awarded in connection with such settlement to any Action challenging the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ Project. Landlord and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, Tenant expressly agree that Landlord shall have the right to offer to settle any matterschoose the legal counsel providing Landlord’s defense, and if that Tenant shall reimburse, on a monthly basis, Landlord for any costs, fees, and expenses incurred by Landlord in the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose course of the matter defense. Landlord shall promptly notify Tenant of any Action brought, and Tenant shall cooperate with Landlord in accordance with the terms and conditions defense of the proposed settlement or the Indemnitee may refuse Action. Tenant’s obligation to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification fully indemnify Landlord shall survive the suspension, revocation, expiration or termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement any permit, entitlement, or approval issued by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing Landlord for or relating to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this AgreementProject.
Appears in 2 contracts
Sources: Ground Lease, Ground Lease
Indemnity. (a) In any threatenedEach Credit Party that is a signatory hereto shall jointly and severally indemnify and hold harmless each of Agent, pending or completed actionLenders and their respective Affiliates, suit, or proceeding to which Collateral Subadvisor, its shareholders, and each such Person's respective officers, directors, employees or associated persons employees, attorneys, agents and representatives (collectivelyeach, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise"Indemnified Person"), the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all suits, liabilityactions, damageproceedings, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit damages, losses, liabilities and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ ' fees and accountants’ feesdisbursements and other costs of investigation or defense, including those incurred upon any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the Indemnitee result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such 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, and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (other than disputes between and among Agent/or the Lenders arising when no Event of Default has occurred and is continuing) (collectively, "Indemnified Liabilities"); provided, that no such settlement Credit Party shall be liable for any indemnification to an Indemnified Person to the extent that any such losssuit, liabilityaction, proceeding, claim, damage, cost loss, liability or expense (including reasonable attorneys’ results from that Indemnified Person's gross negligence or willful misconduct; and, provided further, that any obligations of the Credit Parties to the Indemnified Persons with respect to Environmental Liabilities and accountants’ fees) was caused Hazardous Materials shall be governed exclusively by the terms and provisions of the Environmental Indemnity Agreement and not by the terms and provisions of this Section 1.13 or resulted from a material violation any other term and provision of this Agreement by or any other Loan Document other than the Indemnitor Environmental Indemnity Agreement. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the terms provided herein, if (i) any LIBOR Loans are repaid in whole or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor in part prior to the Indemnitee, the Indemnitee must either use its best efforts last day of any applicable LIBOR Period (whether that repayment is made pursuant to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination any provision of this Agreement.
h) Collateral Subadvisor acknowledges Agreement or any other Loan Document or occurs as to it that the indemnities provided in this Agreement a result of acceleration, by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event operation of any liability accruing to the extent, if any, caused by law or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.otherwise);
Appears in 2 contracts
Sources: Credit Agreement (Roller Bearing Co of America Inc), Credit Agreement (Roller Bearing Co of America Inc)
Indemnity. (a) In any threatenedLessee agrees to indemnify, pending or completed actionreimburse and hold Lessor and its successors, suitAffiliates, or proceeding to which Collateral Subadvisor, its shareholdersassigns, officers, directors, employees employees, agents and servants (hereinafter in this Section 13 referred to individually as "Indemnitee', and collectively as "Indemnitees") harmless from any and all liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, expenses or associated persons (collectivelydisbursements, “its affiliates”) was including Attorneys' Fees and Expenses, of whatsoever kind and nature imposed on, asserted against or is a party or is threatened to be made a party incurred by reason any of the fact that Collateral Subadvisor is Indemnitees in any way relating to or was an investment adviser arising out of the Fund Lease or otherwiseany other document executed in connection herewith or therewith or in any other way connected with the administration of the transactions contemplated hereby or thereby or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to or arising out of the manufacture, ownership, ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of the Equipment (including, without limitation, latent or other defects, whether or not discoverable), the Fund and Managerviolation of the laws of any country, jointly and severallystate or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitee), or property damage), or contract claim, or any claim based on license, patent, trademark or copyright infringement, or any obligation or liability to the manufacturer or Supplier of the Equipment arising under any Supply Contracts, including purchase orders issued by Lessee or Lessor or assigned to Lessor; provided, however that no Indemnitee Page 8 Initial JP / KR ------- shall indemnify and hold harmlessbe indemnified pursuant to this Section 13 for losses, subject to subsection (d) belowdamages or liabilities caused solely by the gross negligence or willful misconduct of such Indemnitee. Lessee agrees that upon written notice by any Indemnitee of the assertion of such a liability, Collateral Subadvisor and its affiliates against any loss, liabilityobligation, damage, costinjury, expenses (including attorneys’ fees and accountants’ fees)penalty, judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any claim, demand, action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement Lessee shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to assume full responsibility for the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor defense thereof. Each Indemnitee agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose promptly notify Lessee of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 13(a) hereof, Lessee agrees to pay, or reimburse Lessor for any, and all reasonable fees, costs and expenses (including Attorneys Fees and Expenses) of whatever kind or nature incurred in connection with the creation, preservation or protection of Lessor's liens on, and security interest in, the Collateral, including, without limitation, all fees and taxes in connection with the recording or filing of instruments and documents in public offices, payment or discharge of any taxes or liens upon or in respect of the matter Collateral, premiums for insurance with respect to the Collateral and all other fees, costs and expenses in accordance connection with protecting, maintaining or preserving the terms Collateral and conditions Lessor's interest therein, whether through judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral.
(c) Lessee shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnitees from and against any and all Losses imposed upon or incurred by or asserted against any Indemnitees, and arising out of or in any way relating to any one or more of the proposed settlement following, unless caused solely by the gross negligence or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event willful misconduct of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach Indemnitee: (i) any presence of any warranty Hazardous Substances in, on, above or under Lessee's leased or owned real property (the "Property"); (ii) any past, present or threatened Release of Hazardous Substances in, on, above, under or from the Property; (iii) any past or present violation of any Environmental Laws. The term "Release" of any Hazardous Substance includes, but is not limited to, any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances. The term "Losses" includes any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminution's in this Agreementvalue, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement, costs of remediating a Hazardous Substance (whether or not performed voluntarily), engineers' fees, environmental consultants' fees, and costs of investigation (including, but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) or punitive damages, of whatever kind or nature (including, but not limited to Attorneys' Fees and Expenses).
Appears in 2 contracts
Sources: Master Equipment Lease Agreement (Genaissance Pharmaceuticals Inc), Master Equipment Lease Agreement (Genaissance Pharmaceuticals Inc)
Indemnity. a) In any threatenedSubject to the conditions set forth below, pending or completed actionFDC agrees to indemnify and hold harmless the Purchasers, suittheir members, or proceeding to which Collateral Subadvisor, its shareholdersmanagers, officers, directors, employees or associated persons (collectivelypartners, “its affiliates”) was or is a party or is threatened to be made a party by reason employees, agents, and counsel, and each person, if any, who controls the Purchasers within the meaning of Section 15 of the fact that Collateral Subadvisor is 1933 Act or was an investment adviser Section 20(a) of the Fund or otherwise1934 Act, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any and all loss, liability, damageclaim, costdamage and expense whatsoever (which shall include, expenses (including for all purposes of this Article XII, but not be limited to, attorneys’ ' fees and accountants’ fees)any and all expense whatsoever incurred in investigating, judgments preparing, or defending against any litigation, commenced or threatened, or any claim whatsoever and any and all amounts paid in settlement actually and reasonably incurred by it of any claim or its affiliates litigation), arising out of, resulting from, based upon, or in connection with any actionbreach of any Material representation, suit warranty, covenant, or proceeding if Collateral Subadvisor acted agreement of FDC contained in good faith and this Agreement. Notwithstanding anything to the contrary, FDC shall indemnify the Purchasers for their proportionate share (based on the percentage of the total outstanding Common Stock owned by the Purchasers) any Material taxes, tax costs, assessments, penalties or interest incurred by FDC in conjunction with or as a manner it reasonably believed result of any acquisitions or other transactions entered into prior to the date of this Agreement by FDC or its subsidiaries. The foregoing agreement to indemnify shall be in or not opposed addition to the best interests of the Fundany liability FDC may otherwise have, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties including liabilities arising under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed Any amount paid to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted Purchasers under this Section 12.
c12 shall be grossed up by multiplying the amount of any such claim by an amount equal to (i) Collateral Subadvisor agrees one, plus (ii) (A) the number of shares owned by Purchasers, divided by (B) the number of shares that are owned by persons other than Purchasers. The Purchasers agree to indemnify, defend indemnify and hold harmless the FundFDC, Manager and Manager’s members, its officers, directors, employees partners, employees, agents, and counsel and each person, if any, who controls FDC within the meaning of Section 15 of the 1933 Act or associated persons (collectivelySection 20(a) of the 1934 Act, “its affiliates”) against any and all loss, liability, claim, damage, costand expense whatsoever (which shall include, expenses (including for all purposes of this Article XII, but not be limited to, attorneys’ ' fees and accountants’ fees)any and all expense whatsoever incurred in investigating, judgments preparing, or defending against any litigation, commenced or threatened, or any claim whatsoever and any and all amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act claim or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (clitigation), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionarising out of, suit or proceeding referred to in subsection (a) or (c) aboveresulting from, based upon, or in defense connection with any breach of any claimMaterial representation, issue warranty, covenant, or matter thereinagreement of Purchasers contained in this Agreement. Except as otherwise agreed by the parties in Article XI hereof, the immediately preceding sentence of this subsection (di) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) FDC shall indemnify the Indemnitee Purchasers for any broker's or its affiliates against finder's fees which may become payable as a result of any promise or contract which may have been made by FDC to or with any such broker or finder and (ii) the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor Purchasers shall indemnify and hold harmless the Fund and Manager from and with respect to FDC for any amounts awarded to such other party. If broker's or finder's fees which may become payable as a result of any claim, dispute promise or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor contract which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is may have been made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for Purchasers to or with any legal such broker or any other expenses reasonably incurred in connection with investigating or defending such claimfinder.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Continental Illinois Venture Corp), Share Purchase Agreement (Factual Data Corp)
Indemnity. a) In any threatenedaddition to the payment of expenses pursuant to subsection 10.2, pending whether or completed actionnot the transactions contemplated hereby shall be consummated, suiteach Borrower agrees to defend, or proceeding to which Collateral Subadvisorindemnify, its shareholderspay and hold harmless Administrative Agent and Lenders, and the officers, directors, employees or associated persons employees, agents and affiliates of Administrative Agent and Lenders (collectively, “its affiliates”collectively called the "INDEMNITEES") was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all other liabilities, liabilityobligations, damagelosses, costdamages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including attorneys’ without limitation the reasonable fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates disbursements of counsel for such Indemnitees in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civilinvestigative, administrative or criminal actionjudicial proceeding commenced or threatened by any Person, suit whether or proceeding not any such Indemnitee shall be designated as a party or a potential party thereto), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including without limitation securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against Collateral Subadvisor or its affiliates mayany such Indemnitee, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor manner relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms arising out of this Agreement or involved willful misfeasance, bad faith the other Loan Documents or the Related Agreements or the transactions contemplated hereby or thereby (including without limitation Lenders' agreement to make the Loans hereunder or the use or intended use of the proceeds of any of the Loans or the issuance of Letters of Credit hereunder or the use or intended use of any of the Letters of Credit) or the statements contained in the commitment letter delivered by any Lender to any Borrower with respect thereto (collectively called the "INDEMNIFIED LIABILITIES"); PROVIDED that Borrowers shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence on the part or willful misconduct of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered that Indemnitee as determined by a final judgment of a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may becompetent jurisdiction. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertaking to defend, suit or proceeding referred to in subsection (a) or (c) aboveindemnify, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless set forth in the Fund and Manager from and with respect to preceding sentence may be unenforceable because it is violative of any amounts awarded to such other party. If any claim, dispute law or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principalspublic policy, each of whom agree Borrower shall contribute the maximum portion that it is permitted to cooperate in such defense pay and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse satisfy under applicable law to the interests payment and satisfaction of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) all Indemnified Liabilities incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost Indemnitees or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation any of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementthem.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Multicurrency Credit Agreement (Goss Graphic Systems Inc), Credit Agreement (Goss Graphic Systems Inc)
Indemnity. (a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, Indemnitor shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply Lender and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold Lender Parties harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claimagainst, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party responsible for paying, any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default and all claims, demands, liabilities, losses, damages, judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; providedfines, howeverpenalties, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable costs and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ fees, costs and accountants’ feesexpenses and all costs of collection and enforcement) directly or indirectly arising out of or attributable to: (i) a breach of any warranty or representation contained in this Agreement or in any other Loan Document relating to an Environmental Violation or a Hazardous Substance; (ii) an action against Indemnitor to enforce any of the provisions of this Agreement, in which such action Indemnitor is found to have breached any of such provisions; and (iii) any Release of a Hazardous Substance on, in, under or about the Premises or any portion thereof; (iv) all costs of any required or necessary Remediation; (v) all costs of the preparation and implementation of any plans for Remediation, closure or other required plans; and (vi) all direct, indirect and consequential damages (excluding punitive damages) arising from or relating to the items described in the preceding clauses (i) through (v). The indemnity provided in this Section 3 shall survive and be unaffected by any modification, amendment, extension, repayment, foreclosure, or deed in lieu of foreclosure of the Loan, as well as any transfer of any direct or indirect interest in Borrower or in the Premises, or the release or extinguishment of the Lien of the Mortgage. Notwithstanding anything to the contrary contained herein, this Indemnity shall not, as to any Indemnified Party, apply to any losses to the extent that a court of competent jurisdiction has determined by final and non-appealable judgment that such losses have resulted from the willful misconduct or gross negligence of such Indemnified Party.
(b) Upon written request of any of the Lender Parties and at their sole option, Indemnitor shall immediately undertake the defense of the Lender Parties, at Indemnitor’s sole cost and expense, with counsel reasonably approved by Lender, in connection with any action or proceeding relating to any obligation set forth in this Agreement for which Indemnitor has an obligation to protect, indemnify, defend, and hold harmless the Lender Parties (collectively, “Environmental Litigation”). In the event Indemnitor refuses to undertake the defense of the Lender Parties after receiving such request, or fails to diligently and continuously conduct such defense after receiving such request, or if Indemnitor is not a party to the Environmental Litigation, or is a party to the Environmental Litigation and, in Lender’s reasonable opinion, there is a potential conflict of interest in the sharing of counsel by Indemnitor and the Lender Parties (collectively, the “Independent Defense Events”), then the Lender Parties may undertake their own defense without reducing, limiting or waiving Indemnitor’s obligations to protect, indemnify and hold harmless the Lender Parties as provided in this Agreement. The actual out-of-pocket costs reasonably incurred by the Indemnitee Lender Parties in connection with such settlement undertaking their own defense due to the extent such lossany Independent Defense Event, liability, damage, cost or expense (including but not limited to reasonable attorneys’ fees, costs and accountantsexpenses, shall constitute a portion of the indemnification obligations of Indemnitor under this Agreement. In the absence of an Independent Defense Event, the Lender Parties may elect to engage additional or different counsel at any time without reducing Indemnitor’s obligations to protect, indemnify and hold harmless the Lender Parties as provided in this Agreement, except that the actual attorneys’ fees) was caused by or resulted from a material violation of this Agreement fees incurred by the Indemnitor Lender Parties in engaging such additional or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability different counsel shall not constitute an indemnification duty of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of under this Agreement.
h(c) Collateral Subadvisor acknowledges as to it that Notwithstanding the indemnities provided in foregoing terms of this Agreement by Manager and the Fund to Collateral Subadvisor Section 3, Indemnitor shall be inapplicable in the event have no liability under this Section 3 for any violation of any liability accruing to Environmental Laws or any disposal of any Hazardous Substances based on any action first occurring, or condition first existing, after any foreclosure or Lender’s acceptance of a deed in lieu of foreclosure of the extentMortgage, if any, unless caused by or arising from the acts or omissions of Indemnitor, any Upstream Owner or any of their respective Affiliates or agents. In the event that Indemnitor disclaims liability under this Agreement based upon Collateral Subadvisor’s misrepresentationsthe provisions of this paragraph, omissions Indemnitor shall be responsible, at its sole cost and expense, to prove such assertion.
(d) The obligations of Indemnitor under this Section 3 shall terminate (other than with respect to any outstanding unfulfilled obligations or breach claims that have been made) on a date which is twelve (12) months after the date when the Loan is timely repaid in full with Borrower and Indemnitor having satisfied all of their payment and performance obligations under the Loan Documents, provided each of the following conditions have been fully satisfied:
(1) Indemnitor delivers to Lender an environmental site assessment report acceptable to Lender prepared by a properly licensed environmental consultant acceptable to Lender evidencing no contamination by Hazardous Substances and no violation of any warranty in Environmental Laws with respect to the Premises; (2) there is no known or suspected contamination of the Premises due to any Hazardous Substances; and (3) there are no outstanding claims, suits or demands existing or threatened with respect to any Hazardous Substances or under any Environmental Laws relating to the Premises. In all other events, Indemnitor’s obligations under this AgreementSection 3 shall survive to the fullest extent and for the maximum time period permitted under applicable law.
Appears in 2 contracts
Sources: Environmental Indemnification Agreement (Kilroy Realty, L.P.), Environmental Indemnification Agreement (Kilroy Realty, L.P.)
Indemnity. a) In consideration of the Indemnitee’s agreement to serve or continue to serve as a Director of the Corporation, or, at the request of the Corporation, as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, whether for profit or not, and including, without limitation, any threatenedemployee benefit plan (a “Designated Director”), pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) if Indemnitee was or is a party made or is threatened to be made a party to, or is otherwise involved in, as a witness or otherwise, any threatened, pending or completed investigation, claim, action, suit, arbitration, alternate dispute resolution mechanism or proceeding (brought in the right of the Corporation or otherwise), whether civil, criminal, administrative, investigative (including, without limitation, any internal corporate investigation) or otherwise, whether formal or informal, and including all appeals thereto (a “Proceeding”), the Corporation hereby agrees to hold the Indemnitee harmless and to indemnify the Indemnitee to the fullest extent now or hereafter permitted by applicable law from and against any and all expenses (which term shall be broadly construed and include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements, appeal bonds, and other out-of-pocket costs) (“Expenses”), judgments, fines, amounts paid in settlement (with such judgments, fines or amounts including, without limitation, all direct and indirect payments of any type or nature whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an employee benefit plan), liabilities or losses actually and reasonably incurred by the Indemnitee by reason of the fact that Collateral Subadvisor such person is or was an investment adviser a Director of the Fund Corporation or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this AgreementDesignated Director, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) any actual or (c) above, unless ordered by a court alleged action or administrative forum, shall be made only as authorized omission to act taken or omitted in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other partycapacity. Notwithstanding any other provision of this subsection (e)Agreement, if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for no indemnification shall be applicable paid to the Indemnitee with respect to default judgmentsa Proceeding, confessions of judgment or settlements entered into part thereof, commenced voluntarily by the Indemnitee without the prior consent of the Indemnitor; provided(including claims and counterclaims, however, that should the Indemnitor refuse to consent to a settlement approved whether such counterclaims are asserted by the Indemnitee, or the Indemnitee may effect such settlement, pay such amount Corporation in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement Proceeding commenced by the Indemnitor of any lossIndemnitee), liability, damage, cost except a Proceeding pursuant to Section 9 hereof to enforce or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of interpret this Agreement by or a Proceeding commencing or continuing after a change in control (as defined in the Indemnitor or violation By-laws), unless the Board of Directors of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlementCorporation determines that indemnification is appropriate.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Director’s Indemnification Agreement (Xylem Inc.), Director’s Indemnification Agreement (Xylem Inc.)
Indemnity. (a) In any threatenedThe Company agrees that it will defend, pending or completed actionindemnify, suit, or proceeding to which Collateral Subadvisorreimburse and hold harmless the Royalty Holder, its affiliates and their directors, partners, managers, members, owners, principals, shareholders, officers, directorsemployees, employees or associated persons agents, consultants, representatives, successors and assigns (collectivelycollectively the “indemnified parties”), “its affiliates”) was or is a party or is threatened to be made a party by reason and each of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisethem, the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all any and all liabilities, liabilityobligations, damagelosses, costdamages, expenses (penalties, actions, judgments, fines, suits, costs, charges, claims, Taxes, expenses, payments or disbursements of any kind whatsoever, including attorneys’ fees and accountants’ fees)expenses, judgments and amounts paid which may be made or brought against the Royalty Holder or which it may sustain, pay or incur that howsoever result from or relate to operations or activities conducted on or in settlement actually and reasonably incurred by it respect of the Property or its affiliates in connection with any action, suit that result from or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed relate to the best interests mining, handling, transportation, smelting or refining of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith Products or gross negligence the handling or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests transportation of the FundProducts.
(b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in Without limiting the sole discretion of Manager, be paid by the Fund and/or Manager in advance generality of the final disposition of such actionforegoing provisions, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor Company hereby agrees to indemnify, defend and hold harmless the Fundindemnified parties from and against any and all administrative, Manager regulatory or judicial actions, suits, demands, claims, liens, notices of non-compliance or violation, investigations, inspections, inquiries, proceedings, losses, costs, expenses, damages, claims and Manager’s members, officers, directors, employees or associated persons liabilities (collectively, “its affiliatesEnvironmental Claims”) against incurred by any loss, liability, damage, cost, expenses indemnified party relating in any way to the Property and any applicable laws (including attorneys’ fees and accountants’ fees)Environmental Laws) or any permit, judgments and amounts paid in settlement actually and reasonably incurred by it license, bond or its affiliates by reason of any act or omission of Collateral Subadvisor relating other governmental authorization with respect to the Fund Property, or any part thereof, including without limitation, as a result of:
(including costs i) any breach or violation of Environmental Laws which relates to the Property or the business, operations or activities of the Company;
(ii) any release, presence, use, creation, transportation, storage or disposal of Hazardous Materials which relate to the Property or the business, operations or activities of the Company; or
(iii) any claim or order for any clean-up, restoration, detoxification, reclamation, repair or other securing or remedial action which relates to the Property or the business, operations or activities of the Company.
(c) The indemnity provided in Section 9(a) is limited to claims, demands, liabilities, actions and expenses proceedings that may be made or taken against an indemnified party its capacity as or related to the Royalty Holder as a holder of investigating the Royalty and defending will not include any indemnity in respect of any claims, demand or suit demands, liabilities, actions and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor proceedings against an indemnified party in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreementany other capacity.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision The indemnification provisions of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Section 9 shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Royalty Agreement (Royal Standard Minerals Inc), Royalty Agreement (Royal Standard Minerals Inc)
Indemnity. (a) In any threatenedEach Credit Party that is a signatory hereto shall jointly and severally indemnify and hold harmless each of Agent, pending or completed actionLenders and their respective Affiliates, suit, or proceeding to which Collateral Subadvisor, its shareholders, and each such Person’s respective officers, directors, employees or associated persons employees, attorneys, agents and representatives (collectivelyeach, an “its affiliatesIndemnified Person”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise), the Fund from and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any lossand all suits, liabilityactions, damageproceedings, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit damages, losses, liabilities and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ fees and accountants’ feesdisbursements and other costs of investigation or defense, including those incurred upon any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the Indemnitee result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such 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, and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (other than disputes between and among Agent/or the Lenders arising when no Event of Default has occurred and is continuing) (collectively, “Indemnified Liabilities”); provided, that no such settlement Credit Party shall be liable for any indemnification to an Indemnified Person to the extent that any such losssuit, liabilityaction, proceeding, claim, damage, cost loss, liability or expense (including reasonable attorneys’ results from that Indemnified Person’s gross negligence or willful misconduct; and, provided further, that any obligations of the Credit Parties to the Indemnified Persons with respect to Environmental Liabilities and accountants’ fees) was caused Hazardous Materials shall be governed exclusively by the terms and provisions of the Environmental Indemnity Agreement and not by the terms and provisions of this Section 1.13 or resulted from a material violation any other term and provision of this Agreement or any other Loan Document other than the Environmental Indemnity Agreement. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the terms provided herein, if (i) any LIBOR Loans are repaid in whole or in part prior to the last day of any applicable LIBOR Period (whether that repayment is made pursuant to any provision of this Agreement or any other Loan Document or occurs as a result of acceleration, by the Indemnitor operation of law or violation otherwise); (ii) Borrower shall default in payment when due of the standard principal amount of conduct set forth herein. Notwithstanding or interest on any LIBOR Loan; (iii) Borrower shall refuse to accept any borrowing of, or shall request a termination of any borrowing, conversion into or continuation of LIBOR Loans after Borrower has given notice requesting the same in accordance herewith; or (iv) Borrower shall fail to make any prepayment of a LIBOR Loan after Borrower has given a notice thereof in accordance herewith, then Borrower shall indemnify and hold harmless each Lender from and against all losses, costs and expenses resulting from or arising from any of the foregoing. Such indemnification shall include any loss (including loss of margin) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate deposits from which such funds were obtained. For the purpose of calculating amounts payable to a Lender under this subsection, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee each Lender shall be deemed to have actually funded its relevant LIBOR Loan through the purchase of a deposit bearing interest at the LIBOR Rate in an amount equal to the amount of said proposed settlement.
g) The that LIBOR Loan and having a maturity comparable to the relevant LIBOR Period; provided, that each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the foregoing provisions assumption shall be utilized only for indemnification the calculation of amounts payable under this subsection. This covenant shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund payment of the Notes and all other amounts payable hereunder. As promptly as practicable under the circumstances, each Lender shall provide Borrower with its written calculation of all amounts payable pursuant to Collateral Subadvisor this Section 1.13(b), and such calculation shall be inapplicable presumed to be correct unless Borrower shall object in writing within twenty (20) Business Days of receipt thereof, specifying the event basis for such objection in detail. The payment of any liability accruing to the extent, if any, caused amounts due under this Section 1.13(b) by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach Borrower as a result of any warranty of the events described in this Agreementclause (i) (other than as a result of acceleration following an Event of Default), clause (iii) or clause (iv) above shall constitute a cure of any Default or Event of Default arising solely from such events.
Appears in 2 contracts
Sources: Credit Agreement (RBC Bearings INC), Credit Agreement (RBC Bearings INC)
Indemnity. a) In any threatened, pending or completed action, suitproceeding or claim brought or asserted by a third party, or proceeding to which Collateral SubadvisorManager will defend, indemnify and hold Owner (and any of its shareholdersAffiliates, their respective directors, trustees, officers, shareholders, employees and agents) harmless from and against any claims, losses, expenses, costs, suits, actions, proceedings, demands or liabilities that are asserted against, or sustained or incurred by them because of Manager’s breach of any material term of this Agreement, or arising from Manager’s failure to act or not act in accordance with Owner’s reasonable instructions or gross negligence, fraud, or willful misconduct, except to the extent caused by Owner’s breach of any material term of this Agreement, gross negligence, fraud or willful misconduct. Owner will defend, indemnify, and hold Manager (and any of its Affiliates, their respective directors, trustees, officers, shareholders, employees and agents) harmless, from and against any and all claims, expenses, costs, suits, actions, proceedings, demands, or associated persons (collectivelyliabilities that are asserted against, “its affiliates”) was or is a party sustained or is threatened to be made a party incurred by reason them in connection with the performance of Manager’s duties under this Agreement or otherwise while acting within the scope of the fact that Collateral Subadvisor is agency established by the parties to this Agreement and in accordance with Section 15.04, or was in the case of an investment adviser action, proceeding or claim brought or asserted by a third party against any of them as a result of Owner’s breach of any material term of this Agreement, violation of Legal Requirements, instructions to Manager to act or not act with respect to the relevant matter or gross negligence, fraud or willful misconduct, except to the extent caused by Manager’s breach of any material term of this Agreement, failure to act or not act in accordance with Owner’s reasonable instructions, gross negligence, fraud or willful misconduct. The scope of the Fund or otherwise, the Fund foregoing indemnities includes any and Manager, jointly all costs and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably properly incurred by it or its affiliates in connection with any actionproceedings to defend any indemnified claim, suit or proceeding if Collateral Subadvisor acted to enforce the indemnity, or both. Recovery upon an indemnity contained in good faith and in a manner it reasonably believed to this Agreement shall be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of reduced dollar-for-dollar by any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid applicable insurance collected by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the indemnified party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation claims covered by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimindemnity.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Management Agreement (Senior Housing Properties Trust), Management Agreement (Five Star Quality Care Inc)
Indemnity. a) In Seller hereby agrees to indemnify Buyer, each Assignee, ▇▇▇▇▇’s designee, ▇▇▇▇▇’s Affiliates, each Assignee’s Affiliates and each of Buyer’s, such Assignee’s and any threatened, pending such designee’s or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, Affiliate’s respective officers, directors, employees or associated persons and agents (collectively, “its affiliatesIndemnified Parties”) was from and against any and all actual, out-of-pocket liabilities, obligations, losses, damages, penalties, actions, judgments, suits, taxes (including stamp, excise, sales or is a party other taxes that may be payable or is threatened determined to be made a party by reason payable with respect to any of the fact that Collateral Subadvisor is Purchased Assets or was an investment adviser Purchased Items or in connection with any of the Fund transactions contemplated by this Agreement and the documents delivered in connection herewith, other than income, withholding or otherwiseother taxes imposed upon Buyer), the Fund and Managerfees, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, costcosts, expenses (including attorneys’ fees and accountantsdisbursements) or disbursements (all of the foregoing, collectively “Indemnified Amounts”) that may at any time (including, without limitation, such time as this Agreement shall no longer be in effect and the Transactions shall have been repaid in full) be imposed on or asserted against any Indemnified Party in any way whatsoever arising out of or in connection with, or relating to, this Agreement or any Transactions hereunder or any action taken or omitted to be taken by any Indemnified Party under or in connection with any of the foregoing. Without limiting the generality of the foregoing, ▇▇▇▇▇▇ agrees to hold each Indemnified Party harmless from and indemnify each Indemnified Party against all Indemnified Amounts with respect to all Purchased Assets relating to or arising out of any violation or alleged violation of any environmental law, rule or regulation or any consumer credit laws, including without limitation ERISA, the Truth in Lending Act and/or the Real Estate Settlement Procedures Act. In any suit, proceeding or action brought by any USActive 60901431.9 91 Indemnified Party in connection with any Purchased Asset for any sum owing thereunder, or to enforce any provisions of any Purchased Asset, Seller will save, indemnify and hold such Indemnified Party harmless from and against all actual, out-of-pocket expense (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it loss or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates damage suffered by reason of any act defense, set-off, counterclaim, recoupment or omission reduction or liability whatsoever of Collateral Subadvisor relating the account debtor or obligor thereunder, arising out of a breach by Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from Seller. Seller also agrees to reimburse Buyer as and when billed by Buyer for all Buyer’s reasonable costs and out-of-pocket expenses incurred in connection with Buyer’s due diligence reviews with respect to the Fund Purchased Assets (including costs including, without limitation, those incurred pursuant to Article 26 and expenses Article 3 (including, without limitation, all Pre-Transaction Legal Expenses, even if the underlying prospective Transaction for which they were incurred does not take place for any reason)) and the enforcement or the preservation of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties Buyer’s rights under this Agreement, any Transaction Documents or by reason Transaction contemplated hereby, including without limitation the fees and disbursements of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may becounsel. To the extent Seller hereby acknowledges that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense obligations of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense Seller hereunder are a recourse obligation of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) Seller. This Article 25 shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party Taxes other than Collateral Subadvisor which claimany Taxes that represent liabilities, dispute obligations, losses, damages, penalties, actions, judgments, suits, fees, costs or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend expenses arising from any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such non-Tax claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt, Inc.), Master Repurchase Agreement (Franklin BSP Real Estate Debt, Inc.)
Indemnity. a) In any threatenedTenant shall indemnify, pending or completed actiondefend, suitprotect, or proceeding to which Collateral Subadvisorhold --------- harmless, its shareholdersand, at Landlord's option (with such attorneys as Landlord may approve in advance and in writing), defend Landlord, Landlord's Agents, and Landlord's officers, directors, employees or associated persons (collectivelyshareholders, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisepartners, the Fund employees, contractors, property managers, agents and Managermortgagees and other lien holders, jointly from and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses and all Losses (including attorneys’ fees and accountants’ feesas defined below), judgments and amounts paid in settlement actually and reasonably incurred by it whenever such Losses arise, arising from or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections related to: (a) any violation or alleged violation by Tenant or any of Tenant's Parties of any of the requirements, ordinances, statutes, regulations or other laws referred to in this Paragraph 11.b, including, without limitation, the -------------- Environmental Laws, whether such violation or alleged violation occurred prior to, on, or after the Commencement Date; (b) any breach of the provisions of this Paragraph 11.b by Tenant or any of Tenant's Parties; or (c) aboveany Hazardous Use -------------- on, unless ordered about or from the Premises by a court Tenant or administrative forumany of Tenant's Parties of any Hazardous Materials (whether or not approved by Landlord under this Lease), whether such Hazardous Use occurred prior to, on, or after the Commencement Date. The term "Losses" shall be made only as authorized mean all claims, demands, expenses, actions, ------ judgments, damages (whether consequential, direct or indirect, known or unknown, foreseen or unforeseen), penalties, fines, liabilities, losses of every kind and nature (including, without limitation, property damage, diminution in value of Landlord's interest in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper Premises, damages for the loss of restriction on use of any space or amenity within the Premises, damages arising from any adverse impact on marketing space in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard Premises, sums paid in settlement of conduct set forth in subsection (a) claims and any costs and expenses associated with injury, illness or (cdeath to or of any person), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionsuits, suit or proceeding referred to in subsection (a) or (c) aboveadministrative proceedings, or in defense of any claimcosts and fees, issue or matter thereinincluding, the immediately preceding sentence of this subsection (d) shall but not apply limited to, attorneys' and consultants' fees and expenses, and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expensescosts of cleanup, including attorneys’ remediation, removal and accountants’ feesrestoration, actually and reasonably incurred by it or its affiliates that are in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect way related to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified matter covered by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claimforegoing indemnity.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Build to Suit Lease (At Home Corp), Build to Suit Lease (At Home Corp)
Indemnity. (a) In any threatened, pending or completed action, suit, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund The Issuer and Managereach Guarantor agree, jointly and severally, shall to indemnify and hold harmless, subject to subsection the extent permitted by law, Subscriber, its directors and officers, employees, and agents, and each person who controls Subscriber (dwithin the meaning of the Securities Act or the Exchange Act) below, Collateral Subadvisor and its affiliates each affiliate of Subscriber (within the meaning of Rule 405 under the Securities Act) from and against any lossand all losses, liabilityclaims, damagedamages, costtaxes, liabilities and expenses (including including, without limitation, any reasonable external attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably expenses incurred by it or its affiliates in connection with defending or investigating any action, suit such action or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests claim) caused by (a) any breach of any of the Fundrepresentations, and provided that its warranties, covenants or agreements made by the Note Parties in this Agreement or in the Note Documents or Warrants to which it is a party, or (b) any action instituted against such Subscriber in any capacity, or any of them or their respective affiliates, by any stockholder of the Issuer who is not an affiliate of such Subscriber, with respect to any of the transactions contemplated by the Note Documents or Warrants (unless such action is primarily based upon a material breach of such Subscriber’s representations, warranties or covenants under the Note Documents or Warrants or any agreements or understandings the Subscriber may have with any such stockholder or any violations by the Subscriber of state or federal securities laws or any conduct does not by the Subscriber which is finally judicially determined to constitute willful misfeasancefraud, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fundwillful misconduct).
(b) Expenses incurred in defending a threatened or pending civilEach Subscriber agrees, administrative or criminal actionseverally and not jointly, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund Issuer, Guarantors, each of their respective directors, officers, employees and Manager agents, and each person who controls the Issuer or any Guarantor (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Issuer against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable external attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) resulting from and any untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of Subscriber expressly for use therein. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Underlying Shares giving rise to such indemnification obligation.
(c) Any person entitled to indemnification herein shall (1) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any amounts awarded person’s right to indemnification hereunder to the extent such other failure has not prejudiced the indemnifying party) and (2) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any claim, dispute or litigation arises between liability for any settlement made by the Fund and/or Manager indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and any expenses of more than one counsel for all parties indemnified by such indemnifying party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party with respect to such claim, dispute or litigation by unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the Fund and/or Manager, jointly entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and severally, such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement 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.
(d) The indemnification provided for under this Agreement shall defend remain in full force and effect regardless of any actions brought in connection therewith investigation made by or on behalf of Collateral Subadvisor the indemnified party or its principalsany officer, each director, employee, agent, affiliate or controlling person of whom agree such indemnified party and shall survive the transfer of any Notes or Warrants purchased pursuant to cooperate in such defense this Agreement and the Fund and/or Manager, jointly and severally, shall indemnify and corresponding Underlying Shares.
(e) If the indemnification provided under this Section 7 from the indemnifying party is unavailable or insufficient to hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any an indemnified party reasonably determines that its interests are or may bein respect of any losses, in whole or in partclaims, adverse damages, liabilities and expenses referred to the interests of herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party may retain its own counsel as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with such claim and any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be indemnified entitled to contribution pursuant to this Section 7 from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 7(e) by any seller of Underlying Shares shall be limited in amount to the indemnifying amount of net proceeds received by such seller from the sale of such Notes, Warrants or Underlying Shares. Notwithstanding anything to the contrary herein, in no event will any party be liable for any legal consequential, special, exemplary or any other expenses reasonably incurred punitive damages in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Global Crossing Airlines Group Inc.), Subscription Agreement (Global Crossing Airlines Group Inc.)
Indemnity. a(1) In The Corporation undertakes to indemnify and hold harmless each of the Agent and the Paying Agents against all losses, liabilities, costs (including, without limitation, legal fees and expenses), expenses, claims, actions or demands which the Agent or any threatenedPaying Agent, pending as the case may be, may reasonably incur or completed actionwhich may be made against the Agent or any Paying Agent, suitas a result of or in connection with the appointment or the exercise of or performance of the powers, discretions, authorities and duties of the Agent or proceeding any Paying Agent under this Agreement except such as may result from its own gross negligence, bad faith or failure to which Collateral Subadvisor, comply with its shareholders, obligations hereunder or that of its officers, directors, employees or associated persons agents.
(collectively, “its affiliates”2) was or is a party or is threatened to be made a party by reason Each of the fact that Collateral Subadvisor is or was an investment adviser of Agent and the Fund or otherwise, the Fund and Manager, jointly and severally, Paying Agents shall severally indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates harmless the Corporation against any loss, liability, damagecosts (including, costwithout limitation, expenses (including attorneys’ legal fees and accountants’ feesexpenses), judgments and amounts paid in settlement actually and expense, claim, action or demand which it may reasonably incurred by incur or which may be made against it as a result of such Agent's or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasancePaying Agent's own negligence, bad faith or gross negligence material failure to comply with its obligations under this Agreement or reckless disregard that of its obligations officers, employees or agents.
(3) If, under any applicable law and duties whether pursuant to a judgment being made or registered or in the liquidation, insolvency or analogous process of any party hereto or for any other reason, any payment under or in connection with this Agreement is made or fails to be satisfied in a currency (the "Other Currency") other than that in which the relevant payment is expressed to be due (the "Required Currency") under this Agreement. The termination of any action, suit or proceeding by judgmentthen, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person payment (when converted into the Required Currency at the rate of exchange on whose behalf such expenses are paid shall agree the date of payment or, if it is not practicable for the payee to reimburse purchase the Fund and/or ManagerRequired Currency with the Other Currency on the date of payment, at the rate of exchange as applicablesoon thereafter as it is practicable for it to do so or, in the event indemnification is not case of a liquidation, insolvency or analogous process, at the rate of exchange on the latest date permitted by applicable law for the determination of liabilities in such liquidation, insolvency or analogous process) actually received by the payee falls short of the amount due under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c)payor shall, as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actiona separate and independent obligation, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be payee against the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive such shortfall. For the termination purpose of this AgreementClause 26, "rate of exchange" means the rate at which the payee is able on the relevant date to purchase the Required Currency with the Other Currency and shall take into account any premium and other costs of exchange.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Agency Agreement (Nationsbank Corp), Agency Agreement (Nationsbank Corp)
Indemnity. (a) In any threatenedWhether or not the transactions contemplated hereby shall be consummated, pending or completed actioneach Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), suitindemnify, or proceeding to which Collateral Subadvisor, its shareholders, officers, directors, employees or associated persons (collectively, “its affiliates”) was or is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify pay and hold harmless, subject to subsection (d) belowLender, Collateral Subadvisor its Affiliates and its affiliates and their respective officers, partners, directors, trustees, employees and agents (each, an “Indemnitee”), from and against any loss, liability, damage, cost, expenses and all Indemnified Liabilities (including attorneys’ fees and accountants’ feesas hereinafter defined), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed Indemnified Liabilities to the best interests of extent such Indemnified Liabilities arise from the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Manager, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Managerwillful misconduct, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered determined by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel of competent jurisdiction in a written opinion final, non-appealable order of that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any actionundertakings to defend, suit or proceeding referred to in subsection (a) or (c) aboveindemnify, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify pay and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under set forth in this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or Section 37 may be available, any indemnified party reasonably determines that its interests are or may be, unenforceable in whole or in partpart because they are violative of any law or public policy, adverse the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the interests payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including environmental claims), costs (including the indemnifying partycosts of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or ▇▇▇▇▇ any hazardous materials activity), expenses and disbursements of any kind or nature whatsoever (including the indemnified party may retain its own reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and environmental laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of said proposed settlement.
g(i) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and or the Fund other Transaction Documents or the transactions contemplated hereby or thereby (including the Lender’s agreement to Collateral Subadvisor shall be inapplicable in make Revolving Loans or Forbearance Period Advances or the event use or intended use of the proceeds thereof, or any enforcement of any liability accruing to of the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach Transaction Documents (including the enforcement of any warranty in this Agreement.guaranty of the Obligations)) or (ii) any environmental claim or any hazardous materials activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of the Borrower or any of its Subsidiaries. Infinity Energy Resources, Inc. Infinity Oil and Gas of Texas, Inc. Infinity Oil & Gas of Wyoming, Inc.
Appears in 2 contracts
Sources: Forbearance Agreement (Infinity Energy Resources, Inc), Fifth Forbearance Agreement (Infinity Energy Resources, Inc)
Indemnity. a) In any threatened, pending or completed action, suit, or proceeding The Seller hereby agrees to which Collateral Subadvisor, indemnify the Buyer and each of its shareholders, officers, directors, employees or associated persons and agents (collectively, “its affiliatesIndemnified Parties”) was from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, taxes (including stamp, excise, sales or is a party other taxes which may be payable or is threatened determined to be made a party by reason payable with respect to any of the fact that Collateral Subadvisor is or was an investment adviser in connection with any of the Fund transactions contemplated by this Agreement and the documents delivered in connection herewith, other than income or otherwisesimilar taxes of the Buyer), the Fund and Managerfees, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, costcosts, expenses (including attorneys’ reasonable attorneys fees and accountants’ fees)disbursements) or disbursements (all of the foregoing, judgments collectively “Indemnified Amounts”) which may at any time (including, without limitation, such time as this Agreement shall no longer be in effect and amounts paid the Transactions shall have been repaid in settlement actually and reasonably incurred full) be imposed on or asserted against any Indemnified Party in any way whatsoever arising out of or in connection with, or relating to, this Agreement or any Transactions thereunder or any action taken or omitted to be taken by it any Indemnified Party under or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fundforegoing; provided, and provided that its conduct does Seller shall not constitute willful misfeasance, bad faith or be liable for Indemnified Amounts resulting from the gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination willful misconduct of any action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed to be in or not opposed to Indemnified Party. Without limiting the best interests generality of the Fund.
b) Expenses incurred foregoing, Seller agrees to hold Buyer harmless from and indemnify Buyer against all Indemnified Amounts with respect to all Purchased Loans relating to or arising out of any violation or alleged violation of any Environmental Law, rule or regulation or any consumer credit laws, including without limitation ERISA, the Truth in defending a threatened or pending civilLending Act and/or the Real Estate Settlement Procedures Act, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates maythat, in the sole discretion of Managereach case, be paid results from anything other than Buyer’s gross negligence or willful misconduct. In any suit, proceeding or action brought by the Fund and/or Manager Buyer in advance of the final disposition of such actionconnection with any Purchased Loan for any sum owing thereunder, suit or proceeding, if and to the extent that the person on whose behalf such expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against enforce any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason provisions of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claimsPurchased Loan, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasanceSeller will save, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered by a court or administrative forum, shall be made only as authorized in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold Buyer harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or against all actual out-of-pocket expense (including reasonable attorneys’ fees), actual out-of-pocket loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from Seller. Seller also agrees to reimburse Buyer as and accountants’ feeswhen billed by Buyer for all Buyer’s actual costs and out-of-pocket expenses incurred in connection with Buyer’s due diligence reviews with respect to the Purchased Loans (including, without limitation, those incurred pursuant to Section 28 hereof) was caused by and the enforcement or resulted from a material violation the preservation of Buyer’s rights under this Agreement by or any Transaction contemplated hereby, including without limitation the Indemnitor or violation reasonable fees and disbursements of the standard of conduct set forth hereinits counsel. Notwithstanding the foregoingSeller hereby acknowledges that, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose obligation of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in Seller under this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event is a recourse obligation of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this AgreementSeller.
Appears in 2 contracts
Sources: Master Repurchase Agreement (RAIT Financial Trust), Master Repurchase Agreement (RAIT Financial Trust)
Indemnity. aIHS indemnifies the Administrative Agent, the Syndication Agent, the Lead Arrangers and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) In against, and holds each Indemnitee harmless from, any threatenedand all losses, pending claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or completed actionasserted against any Indemnitee arising out of, suitin connection with, or as a result of (i) the execution or delivery of any Loan Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the 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 IHS or any Subsidiary, or any Environmental Liability related in any way to IHS or any Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to which Collateral Subadvisorany of the foregoing, its shareholderswhether based on contract, officers, directors, employees tort or associated persons (collectively, “its affiliates”) was or any other theory and regardless of whether any Indemnitee is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwise, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and thereto; provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement such indemnity shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed as to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Managerany Indemnitee, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and available to the extent that the person on whose behalf such losses, claims, damages, liabilities or related expenses are paid determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. No Indemnitee shall agree to reimburse be liable for any damages arising from the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred use by it or its affiliates by reason unintended recipients of any act information or omission of Collateral Subadvisor relating other materials distributed to the Fund (including costs and expenses of investigating and defending any claimssuch unintended recipients by such Indemnitee through telecommunications, demand electronic or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of other information transmission systems in connection with this Agreement or involved willful misfeasancethe other Loan Documents or the transactions contemplated hereby or thereby; provided that such indemnity shall not, bad faith as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered related expenses are determined by a court or administrative forum, shall be made only as authorized in the specific case of competent jurisdiction by final and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification (the “Indemnitee”) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates non-appealable judgment to have been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection (a) or (c) above, or in defense of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation the gross negligence or willful misconduct of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the such Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification shall survive the termination of this Agreement.
h) Collateral Subadvisor acknowledges as to it that the indemnities provided in this Agreement by Manager and the Fund to Collateral Subadvisor shall be inapplicable in the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (IHS Inc.), Credit Agreement (IHS Inc.)
Indemnity. (a) In The Borrower shall indemnify each Credit Party and each Related Party thereof (each such Person being called an “Indemnified Person”) against, and hold each Indemnified Person harmless from, any threatenedand all losses, pending claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnified Person, incurred by or completed actionasserted against any Indemnified Person arising out of, suitin connection with, or as a result of (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the transactions contemplated hereby or any other transactions contemplated thereby (including the Caremark Merger), (ii) any Loan or Letter of Credit or the use of the proceeds thereof, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of the Subsidiaries or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to which Collateral Subadvisorany of the foregoing, its shareholderswhether based on contract, officers, directors, employees tort or associated persons (collectively, “its affiliates”) was or any other theory and regardless of whether any Indemnified Person is a party or is threatened to be made a party by reason of the fact that Collateral Subadvisor is or was an investment adviser of the Fund or otherwisethereto, the Fund and Manager, jointly and severally, shall indemnify and hold harmless, subject to subsection (d) below, Collateral Subadvisor and its affiliates against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates in connection with any action, suit or proceeding if Collateral Subadvisor acted in good faith and in a manner it reasonably believed to be in or not opposed to the best interests of the Fund, and provided that its conduct does not constitute willful misfeasance, bad faith or gross negligence or reckless disregard of its obligations and duties under this Agreement. The termination of any action, suit or proceeding by judgment, order or settlement such indemnity shall not, of itself, create a presumption that Collateral Subadvisor acted in good faith and in a manner which it reasonably believed as to be in or not opposed to the best interests of the Fund.
b) Expenses incurred in defending a threatened or pending civil, administrative or criminal action, suit or proceeding against Collateral Subadvisor or its affiliates may, in the sole discretion of Managerany Indemnified Person, be paid by the Fund and/or Manager in advance of the final disposition of such action, suit or proceeding, if and available to the extent that the person on whose behalf such losses, claims, damages, liabilities or related expenses are paid shall agree to reimburse the Fund and/or Manager, as applicable, in the event indemnification is not permitted under this Section 12.
c) Collateral Subadvisor agrees to indemnify, defend and hold harmless the Fund, Manager and Manager’s members, officers, directors, employees or associated persons (collectively, “its affiliates”) against any loss, liability, damage, cost, expenses (including attorneys’ fees and accountants’ fees), judgments and amounts paid in settlement actually and reasonably incurred by it or its affiliates by reason of any act or omission of Collateral Subadvisor relating to the Fund (including costs and expenses of investigating and defending any claims, demand or suit and attorneys’ and accountants’ fees) if such act or omission materially violated the terms of this Agreement or involved willful misfeasance, bad faith or gross negligence on the part of Collateral Subadvisor in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement.
d) Any indemnification under subsections (a) or (c) above, unless ordered determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted primarily from the gross negligence or administrative forumwillful misconduct of such Indemnified Person. Notwithstanding the above, the Borrower shall be made only as authorized have no liability under clause (i) of this Section to indemnify or hold harmless any Indemnified Person for any losses, claims, damages, liabilities and related expenses relating to income or withholding taxes or any tax in the specific case and only upon a determination by independent legal counsel in a written opinion that indemnification is proper in the circumstances because the party claiming indemnification lieu of such taxes.
(the “Indemnitee”b) has met the applicable standard of conduct set forth in subsection (a) or (c), as the case may be. To the extent that the Indemnitee or its affiliates have been successful on Borrower fails to promptly pay any amount required to be paid by it to the merits or otherwise in defense of any action, suit or proceeding referred to in Administrative Agent under subsection (a) of this Section, each Lender severally agrees to pay to the Administrative Agent an amount equal to the product of such unpaid amount multiplied by (i) at any time when no Loans are outstanding, its Commitment Percentage, or if no Commitments then exist, its Commitment Percentage on the last day on which Commitments did exist, and (ii) at any time when Loans are outstanding (x) if the Commitments then exist, its Commitment Percentage or (y) if the Commitments have been terminated or otherwise no longer exist, the percentage equal to the fraction, (A) the numerator of which is the sum of such Lender’s Credit Exposure and (B) the denominator of which is the sum of the Aggregate Credit Exposure (in each case determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as applicable, was incurred by or asserted against the Administrative Agent in its capacity as such.
(c) above, or in defense The obligations of any claim, issue or matter therein, the immediately preceding sentence of this subsection (d) shall not apply Borrower and the party obligated to indemnify the other party (the “Indemnitor”) shall indemnify the Indemnitee or its affiliates against the expenses, including attorneys’ and accountants’ fees, actually and reasonably incurred by it or its affiliates in connection therewith.
e) In the event that any claim, dispute or litigation arises between Collateral Subadvisor and any party other than the Fund or Manager, which claim, dispute or litigation is unrelated to the Fund’s business, and if the Fund or Manager are made a party to such claim, dispute or litigation by such other party, Collateral Subadvisor shall defend any actions brought in connection therewith on behalf of the Fund and/or Manager each of whom agree to cooperate in such defense and Collateral Subadvisor shall indemnify and hold harmless the Fund and Manager from and with respect to any amounts awarded to such other party. If any claim, dispute or litigation arises between the Fund and/or Manager and any party other than Collateral Subadvisor which claim, dispute or litigation is unrelated to Collateral Subadvisor’s duties Lenders under this Agreement, and if Collateral Subadvisor is made a party to such claim, dispute or litigation by such other party, the Fund and/or Manager, jointly and severally, shall defend any actions brought in connection therewith on behalf of Collateral Subadvisor or its principals, each of whom agree to cooperate in such defense and the Fund and/or Manager, jointly and severally, shall indemnify and hold harmless Collateral Subadvisor and its affiliates from and with respect to any amounts awarded to such other party. Notwithstanding any other provision of this subsection (e), if, in any claim as to which indemnity is or may be available, any indemnified party reasonably determines that its interests are or may be, in whole or in part, adverse to the interests of the indemnifying party, the indemnified party may retain its own counsel in connection with such claim and shall be indemnified by the indemnifying party for any legal or any other expenses reasonably incurred in connection with investigating or defending such claim.
f) None of the foregoing provisions for indemnification shall be applicable with respect to default judgments, confessions of judgment or settlements entered into by the Indemnitee without the prior consent of the Indemnitor; provided, however, that should the Indemnitor refuse to consent to a settlement approved by the Indemnitee, the Indemnitee may effect such settlement, pay such amount in settlement as it shall deem reasonable and seek a judicial or regulatory determination with respect to reimbursement by the Indemnitor of any loss, liability, damage, cost or expenses (including reasonable attorneys’ and accountants’ fees) incurred by the Indemnitee in connection with such settlement to the extent such loss, liability, damage, cost or expense (including reasonable attorneys’ and accountants’ fees) was caused by or resulted from a material violation of this Agreement by the Indemnitor or violation of the standard of conduct set forth herein. Notwithstanding the foregoing, the Indemnitor shall, at all times, have the right to offer to settle any matters, and if the Indemnitor successfully negotiates a settlement and tenders payment therefor to the Indemnitee, the Indemnitee must either use its best efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of the Indemnitor to the Indemnitee shall be the amount of said proposed settlement.
g) The foregoing provisions for indemnification Section 11.10 shall survive the termination of this Agreementthe Commitments and the payment of the Loans and the Notes and all other amounts payable under the Loan Documents.
h(d) Collateral Subadvisor acknowledges To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnified Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to it that direct and actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement, instrument or other document contemplated thereby, the indemnities provided in this Agreement by Manager and transactions contemplated hereby or any Loan or any Letter of Credit or the Fund to Collateral Subadvisor shall be inapplicable in use of the event of any liability accruing to the extent, if any, caused by or based upon Collateral Subadvisor’s misrepresentations, omissions or breach of any warranty in this Agreementproceeds thereof.
Appears in 2 contracts
Sources: Credit Agreement (CVS/Caremark Corp), 364 Day Credit Agreement (CVS/Caremark Corp)