General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to: (i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement; (ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made; (iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation; (iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter; (v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws); (vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party; (vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents; (viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral; (ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property); (x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds; (xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or (xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.
Appears in 2 contracts
Sources: Loan Agreement (Meridian Venture Group LLC), Loan Agreement (Meridian Venture Group LLC)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 10.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify indemnify, pay and hold the Agent and each of the Banks and any holder(s) of the Notes, and the officers, directors, employees, agents and affiliates of the Agent, each of the Lender, XXXXXXXXBanks and such holder(s) (collectively, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the ownership statements contained in any commitment letters delivered by the Agent or funding any of the Loans (or any portion thereof) or in respect Banks, the agreement of any Collateralof the Banks to make the Loans hereunder, excludingthe agreement of Mercantile to issue the Letters of Credit hereunder or the use or intended use of the proceeds of any Loan hereunder (collectively, however, Excluded Taxes and Indemnified Amounts the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or undertakings and indemnification set out in this Section 10.05 shall survive the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Borrower's Obligations and the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Huntco Inc), Revolving Credit Agreement (Huntco Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify the Agent, each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Lenders, each of their respective Affiliates, and all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each each, an "“Indemnified Party"”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees ’ fees, disbursements and disbursements settlement costs (all of the foregoing being collectively referred to as "“Indemnified Amounts"”) awarded against or incurred by any of them arising out of or relating to the Transaction Documents Documents, the Obligations or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and (i) Indemnified Amounts to the extent resulting determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party Party, (ii) recourse (except as finally otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor, (iii) Indemnified Amounts that represent taxes based upon, or measured by, net income, or changes in the rate of tax or as determined by reference to the overall net income, of such Indemnified Party, (iv) Indemnified Amounts that represent franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes or (v) Indemnified Amounts that represent withholding taxes required for payments made to any foreign entity which, at the time such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a court of competent jurisdictionLender hereunder, no longer subject fails to appeal deliver to the Agent and the Borrower an accurate IRS Form W-8 BEN or review)W-8 ECI, as applicable. Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(iA) the obligation creation of any Lien on, or transfer by any Loan Party of any interest in, the Collateral other than the sale of Receivables and related property by the Originator to repay the Lender Seller pursuant to this the Sale Agreement and by the Seller to the Borrower pursuant to the Purchase and Sale Agreement and the grant by the Borrower of a security interest in the Collateral to the Collateral Agent pursuant to the Intercreditor AgreementSection 9.1;
(iiB) the breach of any representation or warranty made by a Relevant any Loan Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report Information Package or any other information or report delivered by such Relevant or on behalf of any Loan Party or its officers in connection with a Transaction Documentpursuant hereto, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed mademade or delivered, as the case may be;
(iiiC) the failure by a Relevant any Loan Party to comply with any applicable law, rule or regulation (including, without limitation, with respect to any securities law, rule Receivable or regulation pertaining to the acquisition of Collateral)related Contract, or the nonconformity of any Receivable or the related Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(ivD) the failure to vest and maintain vested in the Collateral Agent Agent, for the benefit of the Secured Parties, a valid and perfected first priority perfected security interest in and lien on the Collateral, free and clear of any other Lien, whether existing at other than a Lien arising solely as a result of an act of one of the time of any Loan Secured Parties, now or at any time thereafter;
(vE) the failure to file, or any delay in filing any filing, financing statements, assignment statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(viF) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool Receivable (including, without limitation, a defense based on such CP Unit's Receivables or any the related documents' Contract not being a legal, valid and binding obligations obligation of an such Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms), or any other claim resulting from any action the sale of the services related to such Receivable or the furnishing or failure to act of a Relevant Partyfurnish such services;
(viiG) any matter described in Section 3.4;
(H) any failure of a Relevant Party any Loan Party, as the Borrower, the Servicer or otherwise, to perform its duties or obligations under in accordance with the provisions of this Agreement or the other Transaction DocumentsDocuments to which it is a party;
(viiiI) any products liability claim or any claim of breach by any Loan Party of any related Contract with respect to any Receivable;
(J) any tax or governmental fee or charge (other than an Excluded Tax)charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other Agent’s security interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(xK) the commingling of collections on or related to the Contracts and other Collateral Collections of Receivables at any time with other funds;
(xiL) any liability investigation, litigation or proceeding related to or arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its from this Agreement or any other Indemnified Party's interests Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Loan, the security interest in the Contracts Receivables and Related Assets or any other Collateralinvestigation, except litigation or proceeding relating to the extent that such liability arising out Borrower, the Seller or the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby (other than an investigation, litigation or proceeding (1) relating to a dispute solely amongst the Lenders (or certain Lenders) and the Agent or (2) excluded by this Section 13.1(a));
(M) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Indemnified Party's gross negligence Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or wilful misconduct otherwise from any legal action, suit or proceeding;
(as finally determined by a court N) the occurrence of competent jurisdiction, no longer subject to appeal or reviewany Event of Default of the type described in Section 10.1(e); or
(xiiO) any loss resulting from failure of a Relevant Party to maintain insurance as required incurred by the terms any of the Transaction DocumentsSecured Parties as a result of the inclusion in the Borrowing Base of (i) Receivables owing from any single Obligor and its Affiliated Obligors which causes the aggregate Unpaid Balance of all such Receivables to exceed the applicable Obligor Concentration Limit or (ii) Receivables in excess of the Extended Term Concentration Limit.
Appears in 2 contracts
Sources: Credit and Security Agreement (Packaging Corp of America), Credit and Security Agreement (Packaging Corp of America)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawEach Company hereby jointly and severally indemnify and hold Laurus, the Borrower hereby agrees to indemnify each of the Agentand its respective affiliates, the Lenderemployees, XXXXXXXXattorneys and agents (each, the Collateral Agent (if other than the Borrower or its Affiliatean “Indemnified Person”), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, harmless from and against any and all suits, actions, proceedings, claims, damages, losses, claims, liabilities and related costs and expenses, expenses of any kind or nature whatsoever (including reasonable attorneys' ’ fees and disbursements (all and other costs of the foregoing being collectively referred to as "Indemnified Amounts"investigation or defense, including those incurred upon any appeal) awarded which may be instituted or asserted against or incurred by any such Indemnified Person as the result of them credit having been extended, suspended or terminated under this Agreement or any of the Ancillary Agreements or with respect to the execution, delivery, enforcement, performance and administration of, or in any other way arising out of or relating to, this Agreement, the Ancillary Agreements or any other documents or transactions contemplated by or referred to the Transaction Documents herein or the ownership therein and any actions or funding failures to act with respect to any of the Loans (or any portion thereof) or in respect of any Collateralforegoing, excluding, however, Excluded Taxes and Indemnified Amounts except to the extent resulting from gross negligence or willful misconduct on the part of that any such Indemnified Party (as indemnified liability is finally determined by a court of competent jurisdiction, no longer subject jurisdiction to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting resulted solely from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's Person’s gross negligence or wilful misconduct (as finally determined by a court of competent jurisdictionwillful misconduct. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY COMPANY OR TO ANY OTHER PARTY OR TO ANY SUCCESSOR, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsASSIGNEE OR THIRD PARTY BENEFICIARY 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 THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
Appears in 2 contracts
Sources: Security and Purchase Agreement (Miscor Group, Ltd.), Security and Purchase Agreement (Miscor Group, Ltd.)
General Indemnity. Without limiting any other rights (a) Except for the representations and warranties in Sections 3.5, 3.6, 3.7, 3.8, 3.9 and 3.10, which any such Person may have hereunder or under applicable lawshall not survive the Closing, all representations, warranties, covenants and agreements set forth in this Agreement shall survive the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demandClosing. Except as provided below, from and against after the Closing, News Corporation shall indemnify and hold Archon, Jacor, the Purchaser, and the present and former employees, agents, officers and directors of Jacor and the Purchaser (the "Indemnified Parties") harmless from any and all damages, losses, claimsinterest, liabilities and related liabilities, costs and expenses, expenses (including reasonable attorneys' fees and disbursements expenses) (all collectively, "Losses") incurred or suffered by any Indemnified Party (i) arising out of, relating to or as a result of any liabilities or obligations of Archon (regardless of whether such liabilities or obligations have been disclosed) resulting from the transactions contemplated under this Agreement or the Merger Agreement or arising out of, relating to or resulting from the conduct of Archon's business prior to the Closing or acts or omissions that occurred prior to the Closing, (ii) that result from, relate to, or arise out of the foregoing breach of any representation, warranty, agreement or covenant made or given by either of the Selling Entities or Archon in this Agreement (regardless of whether such representation, warranty, covenant or agreement was made by News America or ACP), or (iii) arising out of, relating to or as a result of payments made or liabilities incurred pursuant to or to cancel Employee Arrangements, to cancel or purchase Employee Stock Options, or to purchase shares acquired through the exercise of Employee Stock Options, in each case after the Closing. The indemnification obligations set forth in this SECTION 7.1 shall be in addition to, and not to the exclusion of, the indemnification regarding tax matters provided for in SECTION 7.2 hereof (it being collectively referred understood that claims relating to as tax matters shall be governed by Section 7.2). Notwithstanding anything to the contrary in this Section 7.1, from and after the Closing (i) Jacor shall cause Premiere not to assert any claims against Archon's former employees, agents, officers and directors (the "Indemnified AmountsArchon Affiliates") awarded or Archon arising out of or relating to services performed for Premiere by Archon or the Archon Affiliates under the Securities Purchase Agreement dated January 17, 1995 between Archon and Premiere (the "Securities Purchase Agreement") or otherwise (the "Services"); (ii) if a third party brings a claim against Archon or incurred by any of them the Archon Affiliates arising out of or relating to the Transaction Documents Services, News Corporation shall be free to assert any defense, affirmative defense, or the ownership or funding affirmative claim on behalf of the Loans Selling Entities or Archon (or any portion thereofand such claims are hereby assigned to News Corporation by Archon for such purpose only) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to fileassert that Premiere, or any delay in filing any financing statementsthird party, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower rather than Archon or any Secured Party Archon Affiliate, is liable under such claim except that News Corporation shall not assert any contractual right of indemnification or contribution from Premiere belonging to any Contract or other Collateral; Archon or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral Archon Affiliates (including without limitation any such dispute based on preference right of indemnification or similar lawscontribution under the Securities Purchase Agreement);; (iii) the indemnity in this Section 7.1 shall not cover liabilities for which the Consenting Stockholders (as defined in the Merger Agreement) are indemnified under Section 14 of the Shareholders' Agreement; (iv) the indemnity in this Section 7.1 shall not extend to the first $30,000 of Losses incurred by the Indemnified Parties which are in excess of any amount established pursuant to Section 4.2(b) hereof; and (v) the indemnification in this Section 7.1 shall not apply to Jacor, the Purchaser, or the present or former employees, agents, officers, or directors of Jacor and the Purchaser (but, subject to the qualifications set forth above, shall apply to Archon) if the claim relates to the Services. Jacor shall cause the originals of any of Archon's books and records to be available if needed pursuant to any claim under this Article VII.
(vib) If any disputelawsuit, claimenforcement action, offset or defense other claim is filed or made against an Indemnified Party (other than discharge a "Third-Party Claim") and is covered by the indemnity set forth in bankruptcy(a) above, written notice thereof (the "Third-Party Claim Notice") shall be given to the Selling Entities as promptly as practicable (and in any event within ten (10) calendar days after the receipt of such Third-Party Claim); provided that failure to give such notice shall not affect the indemnity provided herein unless the Selling Entities can demonstrate that they were materially prejudiced as a consequence of such failure. After the receipt of such Third-Party Claim Notice, the Selling Entities shall be entitled, upon written notice to the Indemnified Parties, if the Selling Entities so elect and at the Selling Entities' sole cost, risk, and expense: (i) to take control of the payment defense and investigation of any Contract or any CP Unit insuch Third-Party Claim, or purporting (ii) to be inemploy and engage attorneys of their own choice, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party subject to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests approval of the Indemnified Parties in to handle and defend the same, and (iii) to compromise or lien on settle such Third-Party Claim, which compromise or settlement shall be made only with the Contracts and other Collateralwritten consent of the Indemnified Parties, any portion thereof or any other interest such consent not to be unreasonably withheld. If the Selling Entities do elect to take control of the defense of a Third-Party Claim, the Indemnified Parties shall fully cooperate in the Contracts or other Collateral;
(ix) defense of such Third-Party Claim. If the failure by a Relevant Party Selling Entities do not elect to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with take control of the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out defense of a claim Third-Party Claim, the Indemnified Parties may not compromise or cause of action asserted by any person against an Indemnified settle such Third-Party on account of its or any other Indemnified Party's interests in Claim without the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms consent of the Transaction DocumentsSelling Entities, such consent not to be unreasonably withheld.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Archon Communications Inc), Stock Purchase Agreement (Jacor Communications Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payments pursuant to Section 11.3, the Borrower hereby Company agrees to indemnify each indemnify, pay, and hold Newco and any holder of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents Affiliates of Newco and any of such holder (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and costs, expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for any securities lawof such Indemnitees in connection with any investigative, rule or regulation pertaining to the acquisition of Collateral)administrative, or the nonconformity of any Contract Transfer Document judicial proceeding commenced or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lienthreatened, whether existing at the time or not any of any Loan or at any time thereafter;
(vsuch Indemnitees shall be designated a party thereto) the failure to filethat may be imposed on, incurred by, or asserted against any delay Indemnitee, in filing any financing statementsmanner relating to or arising out of the indebtedness created by this Agreement, assignment the Notes, the Subsidiary Security Agreement, the Security Instruments and the exhibits or any other similar instruments agreements or documents under executed and delivered by the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliverCompany in connection therewith, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any damage to public or worker health and safety or the environment, Newco's agreement to make the Loans hereunder, or the use or intended use of the proceeds of the Loans (the "indemnified liabilities"); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of such dispute based on preference Indemnitee. To the extent that the undertaking to indemnify, pay, and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or similar laws);
(vi) any disputepublic policy, claim, offset or defense (other than discharge in bankruptcy) the Company shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of any Contract all indemnified liabilities incurred by the Indemnitees or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason them. The provisions of the loans or commitments hereunder or the interests undertakings and indemnification set out in this Section 11.11 shall survive satisfaction and payment of the Indemnified Parties in or lien on the Contracts Company's obligations hereunder and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing termination of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 2 contracts
Sources: Secured Loan Agreement (Boston Chicken Inc), Secured Loan Agreement (Boston Chicken Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 11.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of the Agentindemnify, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants pay and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, hold Indemnitees harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of this Agreement, any of the loans other Transaction Documents or commitments any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Banks to issue the Letters of Credit hereunder or the interests use or intended use of the proceeds of any Loan hereunder (collectively, the "Indemnified Parties in Liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to that Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 11.5 shall survive satisfaction and payment of Borrower's Obligations and the termination of this Agreement. No provision contained in this Section 11.5 shall affect any rights the Borrower may have against any Bank which defaults under this Agreement or is intended to indemnify any such liability arising out of Agent or Bank which defaults under this Agreement (but only such Agent or Bank that defaults under this Agreement) for any such Indemnified PartyLiabilities arising from such defaulting Bank's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsaction.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Halter Marine Group Inc), Revolving Credit Agreement (Superior Energy Services Inc)
General Indemnity. Without limiting any other rights which any such Person (a) Subject to the limitations set out in Section 8.2, Vendor shall indemnify and hold the Company and, as the case may have hereunder or under applicable lawbe, Purchaser harmless against a Loss.
(b) Purchaser’s remedies shall include, without limitation, the Borrower hereby agrees right to indemnify each claim compensation by way of a reduction of the AgentPurchase Price and compensation for loss, liability or expense suffered by the LenderCompany and/or Purchaser as a consequence of a breach by Vendor of this Agreement. Any such compensation shall fully reflect the difference, XXXXXXXXas at the Closing Date, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
between (i) the obligation to repay value of the Lender pursuant to this Agreement Participation, taking into account any relevant breach and the grant of a security interest considering such facts and circumstances as may have been relevant to the Collateral Agent pursuant to determination of the Intercreditor Agreement;
Purchase Price, and (ii) the value of the Participation had the breach of Warranty not occurred. For the avoidance of doubt, the Parties shall not be entitled to terminate or rescind this Agreement based on a breach, unless expressly otherwise stated herein.
(c) Without prejudice to (b) above, where the effect of the breach is that (i) the value of any representation asset or warranty made by a Relevant Party right (including one warranted to exist but not existing) of the Company is or any of becomes less than its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall value would have been false had there been no breach of Warranty; or incorrect (ii) the Company has or incurs any liability or increase in any material respect when made liability which would not have been incurred if there had been no breach of Warranty, the compensation shall include the full amount of such deficiency or deemed made;diminution in value of the relevant asset or of the relevant liability or increase in liability
(iiid) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to To the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms Vendor is in breach of the Transaction Documents.Warranties contained in Section 6.4 (d) (iii), Vendor shall forthwith pay to or as directed by Purchaser the amount of the respective receivable(s) together with interest thereon, against transfer of the relevant receivable(s)
Appears in 2 contracts
Sources: Participation Purchase Agreement, Participation Purchase Agreement (Sunrise Telecom Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payments pursuant to Section ----------------- 11.3, the Borrower hereby Company agrees to indemnify each indemnify, pay, and hold Newco and any holder of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents Affiliates of Newco and any of such holder (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and costs, expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for any securities lawof such Indemnitees in connection with any investigative, rule or regulation pertaining to the acquisition of Collateral)administrative, or the nonconformity of any Contract Transfer Document judicial proceeding commenced or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lienthreatened, whether existing at the time or not any of any Loan or at any time thereafter;
(vsuch Indemnitees shall be designated a party thereto) the failure to filethat may be imposed on, incurred by, or asserted against any delay Indemnitee, in filing any financing statementsmanner relating to or arising out of the indebtedness created by this Agreement, assignment the Notes, the Subsidiary Security Agreement, the Security Instruments and the exhibits or any other similar instruments agreements or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliverexecuted and delivered by Company in connection therewith, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any damage to public or worker health and safety or the environment, Newco's agreement to make the Loans hereunder, or the use or intended use of the proceeds of the Loans (the "indemnified liabilities"); provided that Company shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of such dispute based on preference Indemnitee. To the extent that the undertaking to indemnify, pay, and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or similar laws);
(vi) any disputepublic policy, claim, offset or defense (other than discharge in bankruptcy) Company shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of any Contract all indemnified liabilities incurred by the Indemnitees or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason them. The provisions of the loans or commitments undertakings and indemnification set out in this Section 11.11 shall survive satisfaction and payment of Company's obligations hereunder or the interests and termination of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 2 contracts
Sources: Secured Loan Agreement (Harrys Farmers Market Inc), Secured Loan Agreement (Progressive Food Concepts Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 12.12, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of the Agentindemnify, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or pay and hold Lender and its Affiliate), each of their respective Affiliates, successors, transferees, participants successors and assigns and all the officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Lender and its successors and assigns (collectively the foregoing (each an "Indemnified Party"“Indemnitees”), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the same, which may arise by reason any Indemnitee in any manner relating to or arising out of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loan Documents or any other interest agreements executed and delivered by Borrower or any guarantor of the Liabilities in connection herewith, the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment or proposal letter delivered by Lender, Required Document, Contract Transfer Document Lender’s agreement to make the Loans or related agreements the use or intended use of the proceeds of any of the Loans hereunder (including without limitation in connection collectively the “Indemnified Liabilities”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section shall survive satisfaction and payment of the Liabilities and termination of this Loan Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Total Apparel Group , Inc.), Loan and Security Agreement (United American Healthcare Corp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses and attorneys' fees, if applicable, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of indemnify, pay and hold DFS and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of DFS (collectively called the foregoing (each an "Indemnified PartyINDEMNITEES"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of statements contained in any commitment letters delivered by DFS, DFS' agreement to make the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loans or any other interest in payment hereunder, or the Contracts use or other Collateral;
intended use of the proceeds of any of the Loans hereunder (ix) the failure by a Relevant Party "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, that Borrower shall have no obligation to comply an Indemnitee hereunder with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with respect to Indemnified Liabilities arising from the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful willful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.an
Appears in 2 contracts
Sources: Business Credit and Security Agreement (Pomeroy Computer Resources Inc), Business Credit and Security Agreement (Pomeroy Select Integration Solutions Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law(a) Borrower, the Borrower hereby agrees to indemnify each of the Agentat its sole cost and expense, the Lendershall protect, XXXXXXXXindemnify, the Collateral Agent (if other than the Borrower or reimburse, defend and hold harmless Lender and its Affiliate)officers, each of their respective Affiliatespartners, members, directors, trustees, advisors, employees, agents, sub-agents, affiliates, successors, transferees, participants and assigns of any and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "collectively, the “Indemnified Party"), forthwith on demandParties”) for, from and against against, and shall be responsible for, any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all Damages of any kind or nature whatsoever in connection with the Loan Documents or the use of proceeds of the foregoing being collectively referred to as "Indemnified Amounts") awarded Loans, that may be imposed on, incurred by, or asserted against or incurred by any of them the Indemnified Parties, in any way relating to or arising out of (i) any negligence or relating tortious act or omission on the part of Borrower or any of its agents, contractors, servants or employees; (ii) any failure on the part of Borrower to the Transaction Documents perform or the ownership or funding comply with any of the Loans terms of the Loan Documents; and (or iii) any portion thereof) or in respect failure of Borrower to comply with any Collateral, excludingLaws; provided, however, Excluded Taxes and that no Indemnified Amounts Party shall have the right to be indemnified hereunder to the extent resulting that such Damages have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct on of such Indemnified Party. The indemnity and other obligations of the Borrower under this Section 8.18 shall not apply with respect to Taxes, other than any Taxes that represent Damages arising from any non-Tax claims.
(b) If for any reason (including violation of Law or public policy) the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 8.18 are unenforceable in whole or in part or are otherwise unavailable to Lender or insufficient to hold it harmless, then Borrower shall contribute to the amount paid or payable by Lender as a result of any Damages the maximum amount Borrower is permitted to pay under Law. The obligations of Borrower under this Section 8.18 will be in addition to any liability that Borrower may otherwise have hereunder and under the other Loan Documents, will extend upon the same terms and conditions to any Affiliate of Lender and the partners, members, directors, agents, employees and controlling persons (if any), as the case may be, of Lender and any such Affiliate, and will be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of Borrower, Lender, any such Affiliate and any such Person.
(c) At the option of the Indemnified Parties and in their sole discretion, upon written request by any Indemnified Party, Borrower shall defend such Indemnified Party (as finally determined if requested by a court any Indemnified Party, in the name of competent jurisdiction, no longer subject to appeal or review)the Indemnified Party) by attorneys and other professionals reasonably approved by such Indemnified Party. Without limiting Notwithstanding the foregoing, any Indemnified Party may engage its own attorneys and other professionals to defend or assist it (chosen at Lender’s sole discretion), and, at the option of such Indemnified Party, its attorneys shall control the resolution of any claim or proceeding. Upon demand, Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Documentpay or, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests sole discretion of the Borrower or any Secured Party to any Contract or other Collateral; or Indemnified Parties, reimburse, the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to Indemnified Parties for the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel attorneys, engineers, environmental consultants, laboratories and other professionals in defending against the same, which may arise connection therewith.
(d) Any amounts payable to Lender by reason of the loans or commitments hereunder or application of this Section 8.18 shall become immediately due and payable and shall bear interest at the interests of Default Rate from the date Damages are sustained by the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;until paid.
(ixe) The provisions of and undertakings and indemnification set forth in this Section 8.18 shall survive the failure by a Relevant Party to comply with any term, provision or covenant contained satisfaction and payment in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms full of the Transaction DocumentsIndebtedness and termination of this Agreement.
Appears in 2 contracts
Sources: Subordinate Loan Agreement, Subordinate Loan Agreement (Empire Resorts Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawExcept as set forth in Article 15.2, the Borrower hereby Lessee agrees to indemnify and hold harmless each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of Lessor and Lessor’s Lender and their respective Affiliates, successors, transfereespermitted assigns, participants and assigns and all officersshareholders, members, beneficial interest owners, subsidiaries, affiliates, trustees, directors, shareholdersofficers, controlling personsduly appointed agents, servants, employees and agents designated representatives (individually an “Indemnitee” and collectively “Indemnitees”) from any and all liabilities, obligations, losses, damages and prejudices, penalties, claims, actions, suits, costs, disbursements and expenses (including legal fees, costs and related expenses) of every kind and nature (collectively “Damages and Prejudices”), which are imposed on, incurred by or asserted against any Indemnitee and which are in any way related to, based on or arise out of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating tofollowing:
(ia) this Lease or the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreementtransactions contemplated hereby;
(iib) the breach operation, possession, use, non-use, control, leasing, subleasing, maintenance, storage, overhaul, testing or inspections of the Aircraft, any representation or warranty made by a Relevant Party (Engine, the APU or any of its officers) under or in connection with any Transaction DocumentPart (whether by Lessee, any Manager Report sublessee or any other information Person) during the Lease Term and until the Termination Date (including the acceptance flights at return), whether or report delivered by such Relevant Party not the same is in compliance with the terms of this Lease, including without limitation claims for death, personal injury, property damage, other loss or its officers in connection with a Transaction Documentharm to any Person and claims relating to any Laws, which shall have been false including without limitation environmental control, noise and pollution laws, rules or incorrect in any material respect when made or deemed maderegulations;
(iiic) the failure manufacture, design, acceptance by a Relevant Party Lessee or any sublessee, rejection by Lessee or any sublessee, delivery to comply with Lessee or any applicable lawsublessee, rule return by Lessee or regulation (includingany sublessee, without limitationsale arising as the direct consequence of an Event of Default, import by Lessee or any securities lawsublessee, rule export by Lessee or regulation pertaining any sublessee, condition, repair, Modification, servicing, enforcement of warranties whether in Lessor’s or Lessee’s name, customer, product support, information or training provided by Manufacturer and other vendors, airworthiness, registration, re-registration, performance, sublease, merchantability, fitness for use, substitution or replacement of the Aircraft, an Engine, the APU or any Part under this Lease or other transfer of use or possession of the Aircraft, an Engine, the APU or any Part prior to the acquisition of Collateral)Termination Date, including without limitation latent and other defects, whether or the nonconformity of any Contract Transfer Document not discoverable and patent, trademark or other Collateral with any such applicable law, rule or regulationcopyright infringement;
(ivd) the failure prevention or attempt to vest and maintain vested prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to fileAircraft, or any delay in filing any financing statements, assignment or other similar instruments or documents under securing the UCC of any applicable jurisdiction or other applicable laws with respect to the interests release of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review)Aircraft; or
(xiie) without duplication of amounts recovered under Article 23 hereof, as a consequence of any loss resulting from failure Default or Event of a Relevant Party Default by Lessee or any Sublessee. The foregoing indemnity by Lessee is intended to maintain insurance as required by the terms include and cover any Damages and Prejudices to which an Indemnitee may be subject (in contract, tort, strict liability or under any other theory) regardless of the Transaction Documentsnegligence, active or passive or any other type, of such Indemnitee, so long as such Damages and Prejudices does not fall within any of the exceptions listed in Article 15.2.
Appears in 2 contracts
Sources: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower (a) Sublessee hereby agrees to indemnify assume liability for and to indemnify, protect, save and keep harmless the Sublessor and each of the AgentHead Lessor, the Lender, XXXXXXXX, the Collateral Agent Owner and Lender (if other than the Borrower or its Affiliate), each of any) and their respective Affiliates, successors, transfereespermitted assigns, participants and assigns and all officersaffiliates, directors, shareholdersofficers, controlling personsemployees, employees agents and agents of any of servants (in this Section 9.2 and in Section 9.3 hereof, collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) from and against any and all damagesliabilities (including liability in tort, absolute or otherwise), obligations, losses, damages, penalties, claims, liabilities actions, suits, costs, expenses and related costs disbursements of whatsoever kind and nature (including reasonable legal fees and expenses) (any and all "Claims"), including reasonable attorneys' fees imposed on, incurred by or asserted against any Indemnitee (whether or not also indemnified against by any other Person under any other document) in any way relating to or arising out of (i) this Lease or (ii) the delivery, sublease, possession, use, operation, condition, return or other disposition of any item of Equipment, to the extent incurred or arising out of events occurring at any time after delivery of the Aircraft to Sublessor hereunder and disbursements (prior to return of the Aircraft to Sublessor hereunder in full compliance by the Sublessee with all of the foregoing being collectively referred terms of this Sublease with respect thereto (including latent and other defects, whether or not discoverable by any Indemnitee or the Sublessee, and any claim for patent, trademark or copyright infringement); provided, however, that the Sublessee shall not be required (A) to as "Indemnified Amounts"indemnify Sublessor in respect of any amounts which Sublessor has specifically agreed to pay hereunder, (B) awarded to indemnify any Owner or any of its Affiliates against loss, liability or expense incurred by any such Affiliate as a result of any claim against any such Affiliate in its capacity as manufacturer of the Engines and components thereof including claims for patent, trademark or copyright infringement, (C) to pay any cost, expense or disbursement (including legal fees and expenses) in connection with the entering into or withholding any future amendments, supplements, waivers or consents with respect to this Sublease or under any Head Lease other than such as have been requested by Sublessee, (D) to indemnify any Indemnitee for loss, liability or expense resulting from the willful misconduct or gross negligence of such Indemnitee or its successors, assigns, affiliates, agents or servants or, in the case of any Owner, any owner trustee acting for such Owner or, in the case of any such owner trustee, the relevant Owner, (E) to indemnify any Indemnitee for any loss, liability or expense which any of them arising out may incur as the result of any failure or relating refusal of any of them to perform or observe any agreement, covenant or condition contained in any Operative Document, or (G) to indemnify any Indemnitee for any loss, liability or expense which any of them may incur as the Transaction Documents result of any Head Lessor Lien or the ownership Sublessor Lien; provided further that Sublessee does not under this Section 9.2 assume liability for, or funding of the Loans (indemnify, protect, save and keep harmless, any Indemnitee from or any portion thereof) against or in respect of any Collateralliabilities, excludingobligations, howeverlosses, Excluded Taxes damages, penalties, claims, actions or suits in any way relating to or arising out of any Taxes, as defined in Section 9.3. Upon payment in full of any indemnities contained in this Section 9.2 by the Sublessee, it shall be subrogated to any rights of the Indemnitee in respect of the matter against which indemnity has been given, but any amount recovered by the Sublessee as a result of such subrogation shall, unless all amounts then due to such Indemnitee from the Sublessee have been paid, be held in trust by the Sublessee for and Indemnified Amounts shall, to the extent resulting from gross negligence of any such amount then due, be paid promptly after demand to, such Indemnitee. If any Indemnitee shall have knowledge of any claim or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdictionliability hereby indemnified against, no longer subject to appeal or review). Without limiting the foregoing, the Borrower it shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest give prompt written notice hereof to the Collateral Agent pursuant Sublessee and each other interested party, but the failure to the Intercreditor Agreement;
(ii) the breach of do so shall not relieve Sublessee from any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report liability which it may have to such Indemnitee or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, Indemnitee except to the extent that the Sublessee shall demonstrate that such liability arising out was materially increased as a result of such Indemnified Party's gross negligence or wilful misconduct (as finally determined failure. If the Sublessee is required to make payment under this Section 9.2, the Sublessee shall pay the Indemnitee any amount which, after deduction of all taxes required to be paid by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms such Indemnitee in respect of the Transaction Documentsreceipt thereof under the laws of the United States or of any foreign country or any political subdivision of either (after giving credit for any savings in respect of any taxes by reason of deductions, credits or allowances in respect of the payment of the expense indemnified against) shall be equal to the amount of such payment.
Appears in 2 contracts
Sources: Sublease Agreement (Hawaiian Airlines Inc/Hi), Sublease Agreement (Hawaiian Airlines Inc/Hi)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable Lessee shall, to the extent permitted by law, the Borrower hereby agrees to indemnify each of the Agentindemnify, the Lenderdefend, XXXXXXXXand save harmless Lessor, the Collateral Agent its members and its and their members, partners (if other than the Borrower or its Affiliategeneral and limited), each of their respective Affiliatesshareholders, successors, transferees, participants and assigns and all officers, directors, shareholdersagents, controlling personsemployees, employees successors, affiliates and agents of any of the foregoing assigns (each an "“Lessor’s Indemnified Party"), forthwith on demand, Persons”) from and against (a) any and all claims, demands, actions or causes of action by or on behalf of any person, firm, corporation or governmental body for damages, lossesinjuries, claimsdeaths, liabilities and related costs and expensespenalties, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against fines, assessments or incurred by any of them otherwise caused by, arising out of of, resulting from or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) as a consequence of, in whole or in respect of any Collateralpart, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender any acts or omissions of Lessee, its officers, directors, employees, sublessees, contractors, subcontractors, licensees, invitees, engineers, agents, successors, assigns or parent or affiliated corporations or any other persons or entities acting by direct or indirect authority of Lessee or pursuant to any rights granted in this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
Lease or (ii) the breach use and enjoyment of any representation the Surface Premises pursuant to this Lease or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure approval by a Relevant Party to comply with any applicable law, rule Lessor or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity Lessor’s Indemnified Persons of any Contract Transfer Document plans of the Lessee or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested indemnity contained in Section 13 of the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, Sublease or any delay in filing any financing statementsother requirement of RGGS Land & Mineral LTD., assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws L.P. with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document its consent to the Collateral Agent Sublease and (as applicable); b) any and all costs, counsel fees, expenses and liabilities incurred in or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation about any such dispute based on preference claim or similar laws);
(vi) any disputeaction brought thereon, all of which costs, counsel fees, expenses and liabilities shall be reimbursed to Lessor by Lessee immediately upon notification from Lessor to Lessee that the same have been incurred. Provided, further, that indemnity obligations under this Lease exclude Lessor’s lost profit and punitive, exemplary, special or consequential damages. Provided, further, that Lessee shall have no liability under indemnity obligations in this Lease unless Lessor or Lessor’s Indemnified Persons timely informs Lessee of a claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit indemand, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in and gives Lessee the Contracts and other Collateral, except right to assume the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsdefense.
Appears in 2 contracts
Sources: Lease Agreement (Foresight Energy LP), Lease Agreement (Foresight Energy Partners LP)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 9.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of any of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Lender and such holder(s) (each, employees and agents of any of the foregoing (each an "Indemnified Party")“Indemnitee”; and collectively, forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against Indemnitees, in any of them manner relating to or arising out of this Agreement or relating other agreements executed and delivered by Borrower or any other Obligor in connection herewith, the statements contained in any commitment letters delivered by Lender, Lender’s agreement to make the Transaction Documents Loan hereunder or the ownership use or funding intended use of the Loans proceeds of the Loan hereunder (or any portion thereof) or in the “Indemnified Liabilities”); that Borrower shall have no obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and to Indemnified Amounts to Liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnities or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 9.05 shall survive satisfaction and payment of the interest Obligations and termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Superior Bancorp), Loan Agreement (Superior Bancorp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses and attorneys' fees, if applicable, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of indemnify, pay and hold DFS and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of DFS (collectively called the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for any securities lawof such Indemnitees in connection with any investigative, rule administrative or regulation pertaining judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the Indemnitees, in any manner relating to or arising out of the acquisition of Collateral)Loan Documents, the statements contained in any commitment letters delivered by DFS, DFS' agreement to make the Loans or any other payment hereunder, or the nonconformity use or intended use of the proceeds of any Contract Transfer Document of the Loans hereunder. Additionally, Borrower also agrees to (i) indemnify and hold DFS harmless from any loss or expense which may arise or be created by the acceptance of telephonic or other Collateral with instructions for making Loans, except for any such applicable lawloss or expense arising from DFS' gross negligence or willful misconduct (provided, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateralhowever, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment that reliance alone upon telephonic or other similar instruments instructions shall not itself be deemed to constitute gross negligence or documents under the UCC of willful misconduct), and (ii) to pay and save DFS harmless from all liability for, any applicable jurisdiction stamp or other applicable laws taxes which may be payable with respect to the interests execution or delivery of this Agreement or any of the Borrower or any Secured Party to any Contract or other Collateral; or Loan Documents (the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity provisions of the interest preceding two sentences being referred to collectively as the "Indemnified Liabilities"). However, Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of an Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any Secured Party in any Collateral (including without limitation any such dispute based on preference law or similar laws);
(vi) any disputepublic policy, claimBorrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, offset or defense (other than discharge in bankruptcy) to the payment and satisfaction of any Contract all Indemnified Liabilities incurred by the Indemnitees or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason them. The provisions of the loans or commitments hereunder or the interests undertakings and indemnification set out in this Section 12.1 shall survive satisfaction and payment of the Indemnified Parties in or lien on the Contracts Obligations and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing termination of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 2 contracts
Sources: Business Credit and Security Agreement (Creative Computers Inc), Business Credit and Security Agreement (Creative Computers Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawBorrower shall indemnify, the Borrower hereby agrees to indemnify each of the Agenton an after-tax basis, the defend and hold harmless Agent and Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents of any of the foregoing affiliates (each an "Indemnified PartyPersons"), forthwith on demand, from and against ) in connection with any and all damagesexpenses, losses, claims, damages or liabilities and related costs and to which Agent, Lender or such Indemnified Persons may become subject (other than taxes, for which the provisions of Section 10(b) shall apply instead), insofar as such expenses, including reasonable attorneys' fees and disbursements losses, claims, damages or liabilities (all or actions or other proceedings commenced or threatened in respect thereof) arise out of the foregoing being collectively transactions referred to as "Indemnified Amounts") awarded against in this Loan Agreement or incurred by arise from any use or intended use of them arising the proceeds of the Advances, or in any way arise out of activities of Borrower that violate environmental laws, and to reimburse Agent, Lender and each Indemnified Person, upon their demand, for any reasonable legal or relating other out-of-pocket expenses incurred in connection with investigating, defending or participating in any such loss, claim, damage, liability, or action or other proceeding, whether commenced or threatened (whether or not Agent or Lender or any such person is a party to any action or proceeding out of which any such expense arises); provided that nothing in this Section shall obligate Borrower to pay the Transaction Documents normal expenses of Lender in the administration of this Loan Agreement (or the ownership or funding of the Loans (or any portion thereof) or in respect issuance of any CollateralEquipment Note or the making of any Advance, excluding, however, Excluded Taxes in each case after the Closing Date) in the absence of pending or threatened litigation or other proceedings or the claims or threatened claims of others and Indemnified Amounts then only to the extent resulting arising therefrom. Notwithstanding the foregoing, Borrower shall have no obligation hereunder to an Indemnified Person with respect to indemnified liabilities which have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemnified Party (Person, as finally determined by a final and nonappealable judgment by a court of competent jurisdiction, or which have resulted from a claim brought by Borrower against an Indemnified Person for breach in bad faith of such Indemnified Person’s obligations hereunder in which Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. In the case of an investigation, no longer subject litigation or proceeding to appeal which the indemnity in this paragraph applies, such indemnity shall be effective whether or review). Without limiting the foregoingnot such investigation, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of litigation or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made proceeding is brought by a Relevant Party (or Borrower, any of its officers) under Borrower’s equity holders or in connection with any Transaction Documentcreditors, any Manager Report an Indemnified Person or any other information person or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lienentity, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or Indemnified Person is otherwise a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.
Appears in 2 contracts
Sources: Master Loan and Security Agreement, Master Loan and Security Agreement (Computer Sciences Corp)
General Indemnity. Without limiting In addition to the payment of expenses pursuant to Section 9.3, whether or not the transactions contemplated hereby shall be consummated, Borrowers hereby jointly and severally agree to indemnify, pay and hold Bank and any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each holder(s) of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Bank and such holder(s) (collectively, employees and agents of any of the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the foregoing being collectively referred to as "Indemnified Amounts") awarded against other Transaction Documents or incurred any other agreement, document or instrument executed and delivered by any of them arising out of the Borrowers or relating any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by Bank, Bank's agreement to make the Transaction Documents Loans hereunder or the ownership use or funding intended use of the Loans (or any portion thereof) or in respect proceeds of any CollateralLoan hereunder (collectively, excluding, however, Excluded Taxes and Indemnified Amounts the "indemnified liabilities"); provided that Borrowers shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the each Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the this Section 9.5 shall survive satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Borrowers' Obligations and the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Agri Nutrition Group LTD), Credit Agreement (Virbac Corp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawSubject to Section 9.5, the Borrower hereby agrees shall indemnify the Lenders and the Agent and hold them harmless from any liability, loss or damage resulting from the violation by the Borrower of Section 2.3. In addition, subject to Section 9.5, the Borrower shall indemnify each Lender, the Agent, each of the Lenders' or the Agent's directors, officers, employees, agents, attorneys, accountants, consultants and Affiliates (each Lender, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), and each of their respective Affiliatessuch directors, successors, transferees, participants and assigns and all officers, directorsemployees, shareholdersagents, controlling personsattorneys, employees accountants, consultants and agents of any of the foregoing (each Affiliates is referred to as an "Indemnified Party"), forthwith on demand, ) and hold each of them harmless from and against any and all claims, damages, losses, claims, liabilities and related costs and expenses, reasonable expenses (including reasonable attorneys' fees and disbursements of counsel with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party in connection with (all a) the Indemnified Party's compliance with or contest of any subpoena or other process issued against it in any proceeding involving the foregoing being collectively referred to as "Indemnified Amounts") awarded against Borrower or incurred by any of them arising out its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Borrower, any of its Subsidiaries or relating to the Transaction Documents or the ownership or funding of the Loans (their Affiliates, or any portion officer, director or employee thereof, or (c) this Agreement, any other Credit Document or in respect of any Collateral, excludingtransaction contemplated hereby or thereby; provided, however, Excluded Taxes that the foregoing indemnity shall not apply (i) to litigation commenced by the Borrower against the Lenders or the Agent which seeks enforcement of any of the rights of the Borrower hereunder or under any other Credit Document and is determined adversely to the Lenders or the Agent in a final nonappealable judgment or (ii) to any Indemnified Amounts Party to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally claims, damages, liabilities and expenses are determined in a final, nonappealable judgment by a court of competent jurisdiction, no longer subject jurisdiction to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting resulted from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's own gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentswillful misconduct. THE BORROWER EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 2 contracts
Sources: Credit Agreement (American Biltrite Inc), Credit Agreement (American Biltrite Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 13.11, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of the indemnify, pay and hold Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of Lenders and their respective Affiliates, successors, transferees, participants successors and assigns and all the officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Agent, Lenders and their successors and assigns (collectively the foregoing (each an "Indemnified Party"“Indemnitees”), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the same, which may arise by reason any Indemnitee in any manner relating to or arising out of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loan Documents or any other interest agreements executed and delivered by Borrower or any guarantor of the Liabilities in connection herewith, the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contract, Required Document, Contract Transfer Document commitment or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted proposal letter delivered by any person against an Indemnified Party on account of its Agent or any other Lender, Agent’s and Lenders’ agreement to make the Loans or the use or intended use of the proceeds of any of the Loans hereunder (collectively the “Indemnified Party's interests in Liabilities”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the Contracts and other Collateral, except to gross negligence or willful misconduct of such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section shall survive satisfaction and payment of the Liabilities and termination of this Loan Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Agritech Worldwide, Inc.), Loan and Security Agreement (Agritech Worldwide, Inc.)
General Indemnity. Without limiting In addition to any other rights which any such Person may have hereunder or under applicable lawliability of the Borrowers hereunder, the each Borrower hereby agrees to indemnify each of and save harmless the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, Indemnitees from and against any and all damagesliabilities, obligations, losses, claimsdamages, liabilities and related costs and expensespenalties, actions, judgments, suits, costs, expenses or disbursements (including reasonable attorneys' legal fees on a solicitor and disbursements his own client basis) of any kind or nature whatsoever (all but excluding any consequential damages and damages for loss of the foregoing being collectively referred to as "Indemnified Amounts"profit) awarded against or which may be imposed on, incurred by any or asserted against the Indemnitees (except to the extent arising from the negligence or wilful misconduct of them arising such Indemnitees) which relate to or arise out of or relating result from:
(a) any failure by any Borrower to the Transaction Documents pay and satisfy its obligations hereunder including, without limitation, any costs or the ownership or funding expenses incurred by reason of the Loans liquidation or re-employment in whole or in part of deposits or other funds required by the Lenders to fund or maintain the Facilities or as a result of such Borrower’s failure to take any action on the date required hereunder or specified by it in any notice given hereunder;
(b) any investigation by Governmental Authorities or any portion thereof) litigation or in respect other similar proceeding related to any use made or proposed to be made by the Borrowers of the proceeds of any Collateral, excludingAdvance; and
(c) any instructions given to any Lender to stop payment on any cheque issued by any Borrower or to reverse any wire transfer or other transaction initiated by such Lender at the request of any Borrower; provided, however, Excluded Taxes and Indemnified Amounts that such indemnity shall not be available to any Indemnitee to the extent resulting from gross negligence that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or willful misconduct on the part of such Indemnified Party disbursements (as finally i) are determined by a court of competent jurisdiction, no longer subject jurisdiction to appeal have resulted from the gross negligence or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out willful misconduct of Indemnitee or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) result from a claim brought by the Credit Parties against any Indemnitee for breach in bad faith of any representation or warranty made by a Relevant Party (or any of its officers) such Indemnitee’s obligations under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.
Appears in 2 contracts
Sources: Credit Agreement (Tucows Inc /Pa/), Credit Agreement (Tucows Inc /Pa/)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Affected Parties, each of their respective Affiliates, and all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each each, an "Indemnified PartyINDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and reasonable related out-of-pocket costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or relating to the Transaction Documents Documents, the Obligations or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and : (i) Indemnified Amounts to the extent resulting determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party or (ii) recourse (except as finally determined by otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; PROVIDED, HOWEVER, that prior to the occurrence of an Event of Default, the Indemnified Parties shall only be entitled to seek indemnity for the reasonable fees and disbursements of a court of competent jurisdictionsingle law firm as special counsel to all such Indemnified Parties (and, no longer subject if required, a single law firm as local counsel to appeal or reviewall such Indemnified Parties in each relevant jurisdiction where the law firm acting as special counsel is not licensed to practice). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(iA) the obligation to repay the Lender pursuant to this Agreement and the grant creation of a security any Lien on, or transfer by any Loan Party of any interest to in, the Collateral Agent pursuant to other than as provided in the Intercreditor AgreementTransaction Documents;
(iiB) the breach of any representation or warranty made by a Relevant any Originator or Loan Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report Monthly Report, Weekly Report, computation of Cash Collateral Payment or any other information or report delivered by such Relevant or on behalf of any Originator or Loan Party or its officers in connection with a Transaction Documentpursuant thereto, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed mademade or delivered, as the case may be;
(iiiC) the failure by a Relevant any Loan Party to comply with any applicable law, rule or regulation (including, without limitation, with respect to any securities law, rule Receivable or regulation pertaining to the acquisition of Collateral)related Contract and/or Invoice, or the nonconformity of any Receivable or the related Contract Transfer Document or other Collateral and/or Invoice with any such applicable law, rule or regulation;
(ivD) the failure to vest and maintain vested in the Borrower a perfected ownership interest in all Collateral Agent other than the Non-Assignable Contracts, or a first first-priority perfected security interest in favor of the Borrower and lien on the Administrative Agent as its assignee, in the rights to receive payments under each of the Non-Assignable Contracts; or the failure to vest and maintain vested in the Administrative Agent, for the benefit of the Secured Parties, a valid and perfected first priority security interest in the Collateral, free and clear of any other Lien, whether existing at other than a Lien arising solely as a result of an act of one of the time of any Loan Secured Parties, now or at any time thereafter;
(vE) the failure to file, or any delay in filing any filing, financing statements, assignment statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(viF) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool Receivable (including, without limitation, a defense based on such CP Unit's Receivables or any the related documents' Contract and/or Invoice not being a legal, valid and binding obligations obligation of an such Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms), or any other claim resulting from any action the sale of the services related to such Receivable or the furnishing or failure to act of a Relevant Partyfurnish such services;
(viiG) any matter described in Section 3.4;
(H) any failure of a Relevant Party any Loan Party, as the Borrower, the Servicer or otherwise, to perform its duties or obligations under in accordance with the provisions of this Agreement or the other Transaction DocumentsDocuments to which it is a party;
(viiiI) any tax claim of breach by any Loan Party of any related Contract and/or Invoice with respect to any Receivable;
(J) any Tax (but not including Taxes upon or governmental fee measured by net income or charge (other than an Excluded Taxnet profits or franchise Taxes in lieu of net income or net profits Taxes), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other Administrative Agent's security interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(xK) the commingling of collections on or related to the Contracts and other Collateral Collections of Receivables at any time with other funds;
(xiL) any liability investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Loan, the security interest in the Receivables and Related Assets or any other investigation, litigation or proceeding relating to the Borrower or any of the Originators in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby (other than an investigation, litigation or proceeding (1) relating to a dispute solely amongst the Lenders (or certain Lenders) and the Administrative Agent or (2) excluded by Section 13.1(a));
(M) any products or professional liability, personal injury or damage suit, or other similar claim arising out of a claim or cause in connection with merchandise, insurance or services that are the subject of action asserted by any person against an Indemnified Party on account of its Contract, Invoice or any other Indemnified Party's interests Receivable;
(N) any inability to litigate any claim against any Obligor in the Contracts and other Collateral, except to the extent that such liability arising out respect of any Receivable as a result of such Indemnified Party's gross negligence Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or wilful misconduct otherwise from any legal action, suit or proceeding;
(as finally determined by a court O) the occurrence of competent jurisdiction, no longer subject to appeal or reviewany Event of Default of the type described in Section 10.1(e); or
(xiiP) any loss resulting from failure of a Relevant Party to maintain insurance as required incurred by the terms any of the Transaction DocumentsSecured Parties as a result of the inclusion in the Borrowing Base of Receivables owing from any single Obligor and its Affiliated Obligors which causes the aggregate Unpaid Net Balance of all such Receivables to exceed the applicable Obligor Concentration Limit.
Appears in 2 contracts
Sources: Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 7(f), whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify each of the Agent, pay and hold the Lender, XXXXXXXXits affiliates and any holder of any Note, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees successors and agents of any of assigns (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees (or any of them), which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractproposal letters or other similar correspondence delivered by the Lender (whether in person, Required Documentby mail, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its courier or any other electronic means), the Lender's agreement to make the Loans, or the use or intended use of the proceeds of the Loans (the “Indemnified Party's interests in Liabilities”); provided, however, that the Contracts and other Collateral, except Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of an Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of such all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The obligations of the Transaction DocumentsBorrower under this Section 13(d) and under Section 7(f) shall survive any termination of this Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Air T Inc), Loan Agreement (Air T Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 7.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each defend, indemnify, pay and hold Lender and any holder(s) of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Lender and such holder(s) (collectively, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement, any other Transaction Document and/or any other agreement, document or relating instrument heretofore, now or hereafter executed and delivered by Borrower and/or any other Obligor in connection herewith or therewith, Lender’s agreement to the Transaction Documents make Loans under this Agreement or the ownership use or funding intended use of the Loans (or any portion thereof) or in respect proceeds of any CollateralLoan under this Agreement (collectively, excluding, however, Excluded Taxes and the “Indemnified Amounts Liabilities”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any Law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable Law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the this Section 7.05 shall survive satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Borrower’s Obligations and the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawThe Company shall pay, indemnify, and hold each Bank, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Administrative Agent (if other than the Borrower or its Affiliate), and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personscounsel, employees agents and agents of any of the foregoing attorneys-in-fact (each each, an "Indemnified PartyPerson"), forthwith on demand, ) harmless from and against any and all damagesliabilities, obligations, losses, claimsdamages, liabilities and related costs and expensespenalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable attorneys' fees and disbursements out-of-pocket expenses of counsel and the allocated cost of internal counsel) of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement and any other Loan Documents, or the transactions contemplated hereby and thereby, and with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to this Agreement or the Loans, or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all of the foregoing being collectively referred to as foregoing, collectively, the "Indemnified AmountsLiabilities"); provided, that the Company shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities (i) awarded against or incurred by any of them arising out of or relating to from the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party Person (ii) with respect to judicial proceedings commenced against such Indemnified Person by any holder of the debt or equity securities of such Indemnified Person based solely on the rights afforded such holder in its capacity as finally determined such, and (iii) with respect to judicial proceedings commenced solely against such Indemnified Person by another Bank, Assignee or Participant to the extent based on a court cause of competent jurisdictionaction against such Indemnified Person and not the Company or any Restricted Subsidiary. The obligations in this Section 10.5 shall survive payment of all other Obligations. The Company shall have the right to undertake, no longer subject conduct and control through counsel of its own choosing (which counsel shall be acceptable to appeal or review)the Indemnified Persons acting reasonably) and at the sole expense of the Company, the conduct and settlement of any Indemnified Liabilities, and the Indemnified Person shall cooperate with the Company in connection therewith; provided that the Company shall permit the Indemnified Person to participate in such conduct and settlement through counsel chosen by the Indemnified Person, but the fees and expenses of such counsel shall be borne by the Indemnified Person. Without limiting Notwithstanding the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which Person shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party right to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with employ its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect theretoown counsel, and all costs and expenses, including the reasonable fees and expenses of such counsel in defending against shall be at the same, which may arise by reason of the loans or commitments hereunder or Company's costs and expense if the interests of the Company and the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained Person become adverse in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a such claim or cause course of action asserted by any person against an Indemnified Party on account action; provided, however, the Company, in such event, shall only be liable for the reasonable legal expenses of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out one counsel for all of such Indemnified Party's gross negligence Persons. The Company shall not be liable for any settlement of any claim or wilful misconduct (as finally determined by a court of competent jurisdictionaction effected without its prior written consent, no longer subject such consent not to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsbe unreasonably withheld. All amounts owing under this Section 10.5 shall be paid within 30 days after demand.
Appears in 1 contract
Sources: Reducing Revolving Credit Agreement (Cinemark Usa Inc /Tx)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby The Company agrees to indemnify defend, protect, indemnify, and hold harmless each of the Lender, each Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), and each of their respective Affiliates, successorsincluding, transfereeswithout limitation, participants and assigns and all their respective officers, directors, shareholdersemployees, controlling persons, employees attorneys and agents of any of (collectively, the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) from and against any and all damagesliabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees (which shall not exceed one counsel for the Lenders, in their capacity as lenders and such local counsel as may be reasonably required) in connection with any securities lawinvestigative, rule administrative or regulation pertaining to the acquisition of Collateraljudicial proceeding, whether or not such Indemnitees shall be designated a party thereto), imposed on, incurred by, or the nonconformity of asserted against such Indemnitees (whether direct or indirect, consequential or otherwise, and whether based on any Contract Transfer Document federal or state laws or other Collateral with any such applicable lawstatutory regulations, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense securities, commercial, Code, and ERISA laws and regulations, under common law or in equity, or based on such CP Unit's contract or otherwise, including those relating to violation of any environmental, health or safety laws or regulations, the past, present or future operations of the Company or any of its predecessors in interest, or the past, present or future environmental, health or safety condition of any properties thereof) in any manner relating to or arising out of any Financing Document (or any predecessor document) or any agreement contemplated thereby, or any act, event or transaction related documents' not being legalor attendant thereto, valid and binding obligations the making of the Loans since their inception on July 15, 1999, or the use or intended use of the proceeds thereof (collectively, the “Indemnified Matters”); provided, however, the Company shall have no obligation to an Obligor or a party Indemnitee hereunder with respect to a Contract Transfer Document, enforceable against it in accordance with its terms, Indemnified Matters to the extent caused by or resulting from any action the willful misconduct or failure gross negligence of such Indemnitee. Without limiting the generality of the foregoing, “Indemnified Matters” includes the creation of the LDRV ESOP and LDRV ESOT, their qualification as an employee stock ownership plan for the purposes of Section 4975(e)(7) of the Code at all times, the extension by the Company to act the LDRV ESOP of the ESOP Loan and the use of the proceeds of that loan, the merger of the LDRV ESOP with the Alliance ESOP, the transfer of the ESOP Loan from the LDRV ESOP to the Alliance ESOP, the spin-off of the LDRV ESOP from the Alliance ESOP and the separation of the accounts of the Company’s employees and transfer of those accounts from the Alliance ESOT to the LDRV ESOT, the transfer of the ESOP Loan from the Alliance ESOP and the Alliance ESOT to the LDRV ESOP and the LDRV ESOT together with the transfer of associated employer securities credited to a Relevant Party;
(vii) any failure suspense account and pledged as security for the ESOP Loan, the exchange of a Relevant Party Alliance Holdings stock for the stock of the Company and/or the stock of LDRV Holdings Corp. subsequent to perform its duties the spin-off of the LDRV ESOP and the LDRV ESOT from the Alliance ESOP and the Alliance ESOT, the consummation of the ESOP Stock Purchase, the payment or obligations forgiveness of all amounts due under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax)ESOP Loan, all interest and penalties thereon or with respect theretoESOP Note, and all costs the ESOP Loan Agreement, the distribution of assets by the LDRV ESOP, and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason termination of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to LDRV ESOP. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, the Company shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Matters incurred by the terms of Indemnitees. The Company further agrees that the Transaction Documentsindemnities set forth in this Section 15.2 are in addition to, and shall not in any manner limit or act as a waiver of, any rights, including, without limitation, any rights to indemnification or contribution, which the Indemnitees may have under any other document, instrument or agreement or any applicable law.
Appears in 1 contract
Sources: Floor Plan Credit Agreement (Lazy Days R.V. Center, Inc.)
General Indemnity. Without limiting Whether or not any of the transactions contemplated hereby shall be consummated and whether or not an Indemnitee has also been indemnified as to Costs or Expenses by any other rights which any such Person may have hereunder or under applicable lawPerson, the Borrower hereby agrees to indemnify each of the AgentAuthority, the LenderState and the User hereby agree to assume, XXXXXXXXjointly and severally, the Collateral Agent (if other than the Borrower or its Affiliate)and do hereby assume, jointly and severally, liability for, and hereby agree to indemnify, jointly and severally, and do hereby indemnify, jointly and severally, and hereby agree to protect, defend, save and keep harmless on an After-Tax Basis, jointly and severally, each Indemnitee and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, Related Indemnitees from and against any and all damagesliabilities, obligations, losses, damages, penalties, settlements, claims, liabilities actions, suits, proceedings or judgments of any kind and related nature, costs, expenses (including reasonable attorneys’ fees and disbursements) and disbursements (including those reasonable and documented costs and expenses, including reasonable attorneys' legal and consultant fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise incurred by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation such party in connection with the origination documentation and servicing transactions contemplated by the Operative Documents including in connection with amendments, supplements, modifications, consents or waivers of Contracts and Related Property);
(x) any of the commingling of collections on Operative Documents whether or related to not entered into but only if such amendments, supplements, modifications, consents or waivers are initiated or requested or agreed to, in each case, by the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim Authority, the State or cause of action asserted by any person against an Indemnified Party on account of its the User or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as are expressly required by the terms of the Transaction Operative Documents or are required by Applicable Law or are executed in connection with any amendment to the Operative Documents that is required by law or made after a Lease Event of Default) of any kind and nature whatsoever which may be imposed on, incurred by or asserted against any Indemnitee:
(i) in any way relating to or arising out of this Agreement or any of the other Operative Documents or otherwise in connection with the transactions contemplated hereby or thereby or the enforcement of any of the rights, remedies or terms of any thereof;
(ii) in any way relating to the User Head Lease Interest, the Head Lease Interest, the Facility or any Part;
(iii) in any way arising out of or related to the manufacture, acquisition, purchase, acceptance, non-acceptance or rejection, design, ownership, delivery, non-delivery, lease, sublease, subsublease, assignment, possession, use, non-use, financing, mortgaging, control, operation, maintenance, insurance, testing, condition, repair, overhaul, storage, substitution, replacement, servicing, sale (including all costs incurred in making the Facility, the User Head Lease Interest, the Head Lease Interest or any Part ready for sale after the exercise of remedies as a result of a Lease Event of Default), return or other disposition of the Facility or of any Part thereof including any claim for patent, trademark or copyright infringement and any claim based on theories of negligence, warranty, absolute liability, latent or other defects, strict liability, statutory liability or tort or injury, environmental control, violation of public health or safety, noise or pollution and any Liens;
(iv) in any way relating to or arising out of any failure by the Authority, the State or the User to perform or observe any covenant, condition or agreement in or the falsity of any representation or warranty of the Authority, the State or the User made in or pursuant to any Operative Document (other than the Tax Indemnification Agreement);
(v) in any way relating to or arising out of the offer, issuance, delivery, acquisition or sale or holding of any interest in the Loan Certificates or the Trust Estate, or out of the offer, sale or holding of any interest in any indebtedness in connection with any refinancing of the Loan Certificates attempted or consummated as contemplated by Section 19, the exercise of the Service Contract Option or the replacement of the Payment Agreement, the Equity Payment Agreement, the Standby Letter of Credit, the Acceptable Lease Collateral or the Strip Surety Policy as contemplated by Section 21;;
(vi) in connection with the occurrence of a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code in connection with any of the transactions contemplated by this Agreement and the other Operative Documents.;
(vii) in any way relating to or arising out of or with respect to the Loan Agreement and the Collateral and all amounts payable under the Loan Agreement other than principal and interest; or
(viii) including the ongoing fees, expenses and disbursements of the Trust (including the ongoing fees, expenses and disbursement of the Trust Company and the reasonable compensation and expenses of its counsel, accountants or other skilled persons in its employ) arising out of the Trust’s discharge of its duties under the Operative Documents. (all of the foregoing, “Costs or Expenses”); provided, that the Authority, the State and the User shall not be obligated to pay and shall have no indemnity liability for any Costs or Expenses:
(A) to the extent required to be paid by the Owner Participant pursuant to Section 14; (B) imposed on or against an Indemnitee to the extent that such Costs or Expenses are caused by (x) the gross negligence or willful misconduct of such Indemnitee or any of its Related Indemnitees or (y) the inaccuracy or breach of any representation, warranty, covenant or undertaking contained in this Agreement or any other Operative Document of such Indemnitee or any of its Related Indemnitees, unless caused by an inaccuracy or breach by the Authority, the State, the User of any of their respective representations, warranties, covenants or undertakings contained in this Agreement or any other Operative Document;
Appears in 1 contract
Sources: Participation Agreement
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Lenders, each of their respective Affiliates, and all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each each, an "Indemnified PartyINDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or relating to the Transaction Documents Documents, the Obligations or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excludingEXCLUDING, howeverHOWEVER, Excluded Taxes and (i) Indemnified Amounts to the extent resulting determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party Party, (ii) recourse (except as finally otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor, (iii) Indemnified Amounts that represent taxes based upon, or measured by, net income, or changes in the rate of tax or as determined by reference to the overall net income, of such Indemnified Party, (iv) Indemnified Amounts that represent franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes or (v) Indemnified Amounts that represent withholding taxes required for payments made to any foreign entity which, at the time such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a court of competent jurisdictionLender hereunder, no longer subject fails to appeal deliver to the Agent and the Borrower an accurate IRS Form W-8 BEN or review)W-8 ECI, as applicable. Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(iA) the obligation creation of any Lien on, or transfer by any Loan Party of any interest in, the Collateral other than the sale of Receivables and related property by the Originator to repay the Lender Seller pursuant to this the Sale Agreement and by the Seller to the Borrower pursuant to the Purchase and Sale Agreement and the grant by the Borrower of a security interest in the Collateral to the Collateral Agent pursuant to the Intercreditor AgreementSection 9.1;
(iiB) the breach of any representation or warranty made by a Relevant any Loan Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report Information Package or any other information or report delivered by such Relevant or on behalf of any Loan Party or its officers in connection with a Transaction Documentpursuant hereto, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed mademade or delivered, as the case may be;
(iiiC) the failure by a Relevant any Loan Party to comply with any applicable law, rule or regulation (including, without limitation, with respect to any securities law, rule Receivable or regulation pertaining to the acquisition of Collateral)related Contract, or the nonconformity of any Receivable or the related Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(ivD) the failure to vest and maintain vested in the Collateral Agent Agent, for the benefit of the Secured Parties, a valid and perfected first priority perfected security interest in and lien on the Collateral, free and clear of any other Lien, whether existing at other than a Lien arising solely as a result of an act of one of the time of any Loan Secured Parties, now or at any time thereafter;
(vE) the failure to file, or any delay in filing any filing, financing statements, assignment statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(viF) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool Receivable (including, without limitation, a defense based on such CP Unit's Receivables or any the related documents' Contract not being a legal, valid and binding obligations obligation of an such Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms), or any other claim resulting from any action the sale of the services related to such Receivable or the furnishing or failure to act of a Relevant Partyfurnish such services;
(viiG) any matter described in SECTION 3.4;
(H) any failure of a Relevant Party any Loan Party, as the Borrower, the Servicer or otherwise, to perform its duties or obligations under in accordance with the provisions of this Agreement or the other Transaction DocumentsDocuments to which it is a party;
(viiiI) any products liability claim or any claim of breach by any Loan Party of any related Contract with respect to any Receivable;
(J) any tax or governmental fee or charge (other than an Excluded Tax)charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other Agent's security interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(xK) the commingling of collections on or related to the Contracts and other Collateral Collections of Receivables at any time with other funds;
(xiL) any liability investigation, litigation or proceeding related to or arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its from this Agreement or any other Indemnified Party's interests Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Loan, the security interest in the Contracts Receivables and Related Assets or any other Collateralinvestigation, except litigation or proceeding relating to the extent that such liability arising out Borrower, the Seller or the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby (other than an investigation, litigation or proceeding (1) relating to a dispute solely amongst the Lenders (or certain Lenders) and the Agent or (2) excluded by SECTION 13.1(a));
(M) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Indemnified Party's gross negligence Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or wilful misconduct otherwise from any legal action, suit or proceeding;
(as finally determined by a court N) the occurrence of competent jurisdiction, no longer subject to appeal or reviewany Event of Default of the type described in SECTION 10.1(e); or
(xiiO) any loss resulting from failure of a Relevant Party to maintain insurance as required incurred by the terms any of the Transaction DocumentsSecured Parties as a result of the inclusion in the Borrowing Base of Receivables owing from any single Obligor and its Affiliated Obligors which causes the aggregate Unpaid Balance of all such Receivables to exceed the applicable Obligor Concentration Limit.
Appears in 1 contract
Sources: Credit and Security Agreement (Packaging Corp of America)
General Indemnity. Without limiting The Concessionaire will indemnify, defend, save and hold harmless the Authority and its officers, servants, agents, Government Instrumentalities and Government owned and/or controlled entities/enterprises, (the “Authority Indemnified Persons”) or any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officerssuits, directorsproceedings, shareholdersactions, controlling personsdemands and claims from third parties for any loss, employees damage, cost and agents expense of whatever kind and nature, whether arising out of any breach by the Concessionaire of any of its obligations under this Agreement or any related agreement or on account of any defect or deficiency in the foregoing (each an "provision of services by the Concessionaire or from any negligence of the Concessionaire under contract or tort or on any other ground whatsoever, except to the extent that any such suits, proceedings, actions, demands and claims have arisen due to any negligent act or omission, or breach or default of this Agreement on the part of the Authority Indemnified Party")Persons. The Authority will indemnify, forthwith defend, save and hold harmless the Concessionaire against defect in title and/or the rights of the Concessionaire in the land comprised in the Site, and/or any and all suits, proceedings, actions, demands and claims from third parties for any loss, damage, cost and expense of whatever kind and nature arising out of breach by the Authority of any of its obligations under this Agreement or any related agreement, which materially and adversely affect the performance by the Concessionaire of its obligations under this Agreement, save and except that where any such claim, suit, proceeding, action, and/or demand has arisen due to a negligent act or omission, or breach of any of its obligations under any provision of this Agreement or any related agreement and/or breach of its statutory duty on demandthe part of the Concessionaire, its subsidiaries, affiliates, contractors, servants or agents, the same shall be the liability of the Concessionaire. Indemnity by the Concessionaire Without limiting the generality of Clause 24.1, the Concessionaire shall fully indemnify, hold harmless and defend the Authority and the Authority Indemnified Persons from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them loss and/or damages arising out of or relating with respect to: failure of the Concessionaire to comply with Applicable Laws and Applicable Permits; payment of taxes, levies, fees and any other statutory dues required to be made by the Concessionaire in respect of the income or other taxes of the Concessionaire‟s contractors, suppliers and representatives; or non-payment of amounts due as a result of materials or services furnished to the Transaction Documents Concessionaire or any of its contractors which are payable by the Concessionaire or any of its contractors. Without limiting the generality of the provisions of this Article 24, the Concessionaire shall fully indemnify, hold harmless and defend the Authority Indemnified Persons from and against any and all suits, proceedings, actions, claims, demands, liabilities and damages which the Authority Indemnified Persons may hereafter suffer, or pay by reason of any demands, claims, suits or proceedings arising out of claims of infringement of any domestic or foreign patent rights, copyrights or other intellectual property, proprietary or confidentiality rights with respect to any materials, information, design or process used by the Concessionaire or by the Concessionaire‟s Contractors in performing the Concessionaire‟s obligations or in any way incorporated in or related to the Project. If in any such suit, action, claim or proceedings, a temporary restraint order or preliminary injunction is granted, the Concessionaire shall make every reasonable effort, by giving a satisfactory bond or otherwise, to secure the revocation or suspension of the injunction or restraint order. If, in any such suit, action, claim or proceedings, the Project, or any part thereof or comprised therein, is held to constitute an infringement and its use is permanently enjoined, the Concessionaire shall promptly make every reasonable effort to secure for the Authority a licence, at no cost to the Authority, authorising continued use of the infringing work. If the Concessionaire is unable to secure such licence within a reasonable time, the Concessionaire shall, at its own expense, and without impairing the Specifications and Standards, either replace the affected work, or part, or process thereof with non-infringing work or part or process, or modify the same so that it becomes non-infringing. The Concessionaire shall indemnify the Authority against all claims whatsoever arising out of any Statute/Law in force in respect of the personnel engaged by him directly or indirectly for the Project. Notice and contest of claims In the event that either Party receives a claim or demand from a third party in respect of which it is entitled to the benefit of an indemnity under this Article 24 (the “Indemnified Party”) it shall notify the other Party (the “Indemnifying Party”) within 15 (fifteen) days of receipt of the claim or demand and shall not settle or pay the claim without the prior approval of the Indemnifying Party, which approval shall not be unreasonably withheld or delayed. In the event that the Indemnifying Party wishes to contest or dispute the claim or demand, it may conduct the proceedings in the name of the Indemnified Party, subject to the Indemnified Party being secured against any costs involved, to its reasonable satisfaction. Defence of Claims The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim, action, suit or proceeding by any third party alleged or asserted against such Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, and reasonable costs and expenses thereof shall be indemnified by the Indemnifying Party. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of loss to the full extent provided by this Article 24, the Indemnifying Party shall be entitled, at its option, to assume and control the defence of such claim, action, suit or proceeding, liabilities, payments and obligations at its expense and through the counsel of its choice; provided it gives prompt notice of its intention to do so to the Indemnified Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of such defence. The Indemnifying Party shall not be entitled to settle or compromise any claim, demand, action, suit or proceeding without the prior written consent of the Indemnified Party, unless the Indemnifying Party provides such security to the Indemnified Party as shall be reasonably required by the Indemnified Party to secure the loss to be indemnified hereunder to the extent so compromised or settled. If the Indemnifying Party has exercised its rights under Clause 24.3, the Indemnified Party shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party exercises its rights under Clause 24.3, the Indemnified Party shall nevertheless have the right to employ its own counsel, and such counsel may participate in such action, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party, when and as incurred, unless: the employment of counsel by such party has been authorised in writing by the Indemnifying Party; or the ownership or funding Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the Loans defence of such action; or the Indemnifying Party shall not, in fact, have employed independent counsel reasonably satisfactory to the Indemnified Party, to assume the defence of such action and shall have been so notified by the Indemnified Party; or the Indemnified Party shall have reasonably concluded and specifically notified the Indemnifying Party either: that there may be specific defences available to it which are different from or additional to those available to the Indemnifying Party; or that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the scope of this Agreement: Provided that if Sub-clauses (or any portion thereofb), (c) or (d) of this Clause 24.4.3 shall be applicable, the counsel for the Indemnified Party shall have the right to direct the defence of such claim, demand, action, suit or proceeding on behalf of the Indemnified Party, and the reasonable fees and disbursements of such counsel shall constitute legal or other expenses hereunder. No consequential claims Notwithstanding anything to the contrary contained in this Article 24, the indemnities herein provided shall not include any claim or recovery in respect of any Collateralcost, excludingexpense, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence loss or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations damage of an Obligor indirect, incidental or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expensesconsequential nature, including the reasonable fees and expenses loss of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateralprofit, except to the extent that such liability arising out as expressly provided in this Agreement. Survival on Termination The provisions of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Article 24 shall survive Termination.
Appears in 1 contract
Sources: Concession Agreement
General Indemnity. Without limiting In addition to any liability of the Borrower to any Lender or the Agent under any other rights which any such Person may have hereunder or under applicable lawprovision hereof, the Borrower hereby agrees to shall indemnify each of Lender and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successorsdirectors, transferees, participants and assigns and all officers, directorsagents and employees (collectively, shareholdersin this Section 11.2, controlling persons, employees and agents of any of the foregoing (each an "“Indemnified Party"Parties”), forthwith on demand, and hold each Indemnified Party harmless from and against any and all damages, losses, claims, costs, damages or liabilities and related costs and expenses, (including reasonable attorneys' out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the same which arise as a result of or in connection with the Loan Documents including, without limitation, as a result of or in connection with:
(a) all third party claims, suits, debts, damages, costs, losses, liabilities, penalties, obligations, judgments, charges, expenses and disbursements arising in connection with any action, suit or proceeding (all of the foregoing being collectively referred to as "whether or not an Indemnified Amounts"Party is a party or subject thereto) awarded against or incurred by any of them arising out of or relating to the Transaction Documents Borrowings or the ownership Loan Documents, including any environmental claims relating to the Borrower or funding any of its Subsidiaries;
(b) any cost or expense incurred by reason of the Loans liquidation or re-deployment in whole or in part of deposits or other funds required by any Lender to fund or maintain any Borrowing as a result of the Borrower's failure to complete a Drawdown, Conversion or Rollover hereunder or to make any payment, repayment or prepayment on the date required hereunder or specified by it in any notice given hereunder;
(c) subject to permitted Conversions and Rollovers of Bankers’ Acceptances and Letters of Credit hereunder, the Borrower's failure to provide for the payment to the Agent for the account of the Lenders of the full principal amount of each Bankers' Acceptance on its maturity date or the full amount drawn on any portion thereofLetter of Credit;
(d) the Borrower's failure to pay any other amount, including, without limitation, any interest or fee, due hereunder on its due date after the expiration of any applicable grace or notice periods (subject, however, to the interest obligations of the Borrower hereunder for overdue amounts);
(e) the prepayment of any outstanding Term Benchmark Loan before the last day of the Interest Period in respect of such Term Benchmark Loan including, without limitation, any Collateraland all costs, excludinglosses, howeverpremiums or expenses incurred by reason of a liquidation or re-deployment of deposits or other funds in respect of Term Benchmark Loans outstanding from time to time hereunder;
(f) the prepayment of any outstanding Bankers' Acceptance before the maturity date of such Bankers' Acceptance;
(g) the Borrower's failure to give any notice required to be given by it to the Agent or the Lenders hereunder;
(h) the failure of the Borrower to make any other payment due hereunder;
(i) any inaccuracy or incompleteness of the Borrower's representations and warranties contained in Article 2;
(j) any failure of the Borrower to observe or fulfil its obligations under Article 8; or
(k) the occurrence of any Event of Default; provided that this Section 11.2 shall not apply to any losses, Excluded Taxes and claims, costs, damages or liabilities of any Indemnified Amounts Party claiming indemnity hereunder to the extent resulting from gross negligence or willful misconduct on that the part of such Indemnified Party (as finally same are determined by a court of competent jurisdiction, no longer subject jurisdiction by final and non-appealable judgment to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise arisen by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateralbad faith, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting such Indemnified Party. Payment of an amount for which the Borrower is liable under this indemnification shall be made within 30 days from failure the date an Indemnified Party makes written demand for payment thereof. The provisions of a Relevant Party to maintain insurance as required by this Section 11.2 shall survive the terms termination of the Transaction Agreement and the repayment of the obligations of the Borrower hereunder. The Borrower agrees not to assert any claim against any of the Agent, the Lead Arrangers or any Lender or any of their respective Affiliates or their officers, directors, employees, agents or advisors (each, a “Lender-Related Person”), on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to any of the Loan Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Borrowings. No Lender-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
Appears in 1 contract
Sources: Credit Agreement (Ovintiv Inc.)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 9.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of any Note, and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of Lender and such holder(s) (collectively called the foregoing (each an "Indemnified Partyindemnities"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such indemnities shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnities, in any of them manner relating to or arising out of this Agreement or relating other agreements executed and delivered by Borrower or any other obligor in connection herewith, the statements contained in any commitment letters delivered by Lender, Lender's agreement to make the Transaction Documents Loan hereunder or the ownership use or funding intended use of the Loans proceeds of the Loan hereunder (or any portion thereof) or in the "indemnified liabilities"); that Borrower shall have no obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to appeal pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnities or review)any of them. Without limiting The provisions of the undertakings and indemnification set out in this Section 9.05 shall survive satisfaction and payment of Borrower's obligations and termination of this Agreement. Notwithstanding the foregoing, Borrower's liability for the Borrower indemnified liabilities referenced in this provision shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsexceed $25,000.00.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law19.6.1. Borrower shall pay, indemnify and hold harmless Agent and each Lender and their respective directors, officers, employees, agents, and representatives (collectively, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified PartyParties"), forthwith on demand) for, from and against against, and promptly reimburse the Indemnified Parties for, any and all claims, damages, liabilities, losses, claims, liabilities and related costs and expenses, expenses (including reasonable attorneys' fees and disbursements (all expenses and amounts paid in settlement) incurred, paid or sustained by the Indemnified Parties in connection with, arising out of, based upon or otherwise involving or resulting from any threatened, pending or completed action, suit, investigation or other proceeding by, against or otherwise involving the Indemnified Parties and in any way dealing with, relating to or otherwise involving this Agreement, any of the foregoing being collectively referred other Loan Documents, or any transaction contemplated hereby or thereby, except to as "Indemnified Amounts") awarded against the extent that they arise from the gross negligence, bad faith or incurred by willful misconduct of any of them the Indemnified Parties. Borrower shall pay, indemnify and hold harmless the Indemnified Parties for, from and against, and promptly reimburse the Indemnified Parties for, any and all claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys' and consultant fees and expenses, investigation and laboratory fees, removal, remedial, response and corrective action costs, and amounts paid in settlement) incurred, paid or sustained by the Indemnified Parties as a result of the manufacture, storage, transportation, release or disposal of any Hazardous Material on, from, over or affecting any of the Collateral or any of the assets, properties, or operations of any Covered Person or any predecessor in interest, directly or indirectly, except to the extent that they arise from the gross negligence, bad faith or willful misconduct of any of the Indemnified Parties. Borrower shall pay, indemnify and hold harmless the Indemnified Parties for, from and against, and shall promptly reimburse the Indemnified Parties for, any and all claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys' fees and expenses and amounts paid in settlement) incurred, paid or sustained by the Indemnified Parties, arising out of or relating to the Transaction any Acquisition Documents or the ownership or funding enforcement by Agent of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or rights with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out they arise from the gross negligence, bad faith or willful misconduct of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsIndemnified Parties.
19.6.2. The obligations of Borrower under this Section shall survive the termination of the Commitments, the expiration of the Letters of Credit, the payment and satisfaction of all of the Loan Obligations, and the release of the Collateral.
▇▇.▇.▇. ▇▇ the extent that any of the indemnities required from Borrower under this Section are unenforceable because they violate any Law or public policy, Borrower shall pay the maximum amount which it is permitted to pay under applicable Law.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person Except as may have hereunder be otherwise provided in this Agreement, in addition to the payment of expenses pursuant to Section 11.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to protect, defend and indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants Indemnitees and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, hold Indemnitees harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of this Agreement, any of the loans other Transaction Documents or commitments any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Banks, the agreement of any of the Banks to make the Loans hereunder, the agreement of Banks to issue the Letters of Credit hereunder or the interests use or intended use of the proceeds of any Loan hereunder (collectively, the "Indemnified Parties in Liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to that Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 11.5 shall survive satisfaction and payment of the Obligations and the termination of this Agreement. No provision contained in this Section 11.5 shall affect any rights the Borrower may have against any Bank which defaults under this Agreement or is intended to indemnify any such liability arising out of Agent or Bank which defaults under this Agreement (but only such Agent or Bank that defaults under this Agreement) for any such Indemnified PartyLiabilities arising from such defaulting Bank's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsaction.
Appears in 1 contract
Sources: Revolving Credit Agreement (Halter Marine Group Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 9.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Agent and Banks and any holder(s) of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Agent, employees Banks and agents of any of such holder(s) (collectively, the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement or relating any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith, the statements contained in any commitment letters delivered by Agent or any Bank, Banks’ agreements to make the Transaction Documents Loans and issue Letters of Credit hereunder or the ownership use or funding intended use of any Letter of Credit or of the Loans (or any portion thereof) or in respect proceeds of any CollateralLoan hereunder (collectively, excluding, however, Excluded Taxes and Indemnified Amounts the “indemnified liabilities”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) satisfy under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) lawApplicable Law to the payment and satisfaction of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required indemnified liabilities incurred by the terms of the Transaction Documents.Indemnitees or any
Appears in 1 contract
Sources: Credit Agreement (Shoe Carnival Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses and attorneys' fees, if applicable, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, Bald▇▇▇ ▇▇▇ees to indemnify, pay and hold Agent and the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Agent and such holders (collectively called the foregoing (each an "Indemnified PartyINDEMNITEES"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of statements contained in any commitment letters delivered by the Indemnified Parties in or lien on Lenders. The Lenders' agreement to make the Contracts and other Collateral, any portion thereof Loans or any other interest in payment hereunder, or the Contracts use or other Collateral;
intended use of the proceeds of any of the Loans hereunder (ix) the failure by a Relevant Party "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, that Bald▇▇▇ ▇▇▇ll have no obligation to comply an indemnitee hereunder with any term, provision respect to Indemnified Liabilities arising from the gross negligence or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Bald▇▇▇ ▇▇▇ll contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 13.1 shall survive satisfaction and payment of the Obligations and termination of this Credit Agreement.
Appears in 1 contract
General Indemnity. Without limiting any The Borrowers and each other rights which any such Person may have hereunder or under applicable lawLoan Party agree to defend (with counsel satisfactory to the Lender), the Borrower hereby agrees to protect, indemnify each of the Agent, and hold harmless the Lender, XXXXXXXXeach Affiliate or Subsidiary of the Lender, the Collateral Agent (if other than the Borrower or its Affiliate), and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees attorneys and agents of any of the foregoing (each an "“Indemnified Party"), forthwith on demand, ”) from and against any and all damagesliabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature (including, without limitation, those liabilities described in subsection 16(b) hereof and the disbursements and the fees (on a solicitor-client basis) of internal and external counsel for each Indemnified Party in connection with any securities lawinvestigative, rule administrative or regulation pertaining to judicial proceeding, whether or not the acquisition of CollateralIndemnified Party shall be designated a party thereto) (collectively, the “Indemnified Liabilities”), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable lawwhich may be imposed on, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to fileincurred by, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in deliveringasserted against, any Required Document to the Collateral Agent Indemnified Party (as applicable); whether direct, indirect or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute consequential and whether based on preference any federal, provincial, state or similar laws);
(vi) any dispute, claim, offset local Laws or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (regulations including, without limitation, a defense securities, environmental and commercial Laws and regulations, under common law or in equity, or based on such CP Unit's contract or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(viiotherwise) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document manner relating to or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its this Agreement or any other Loan Documents or any act, event or transaction related or attendant to any of the foregoing, the making and the management of the Loans or the use or intended use of the proceeds of the Loans save and except for any Indemnified Party's interests in Liabilities arising as a result of the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct of any Indemnified Party. To the extent that the undertaking to indemnify set forth in the preceding sentence may be unenforceable because it is violative of any Law or public policy, the Borrowers and each other Loan Party shall satisfy such undertaking to the maximum extent permitted by Applicable Law. Any liability, obligation, loss, damage, penalty, cost or expense covered by this indemnity shall be paid to each Indemnified Party within five (as finally determined 5) Business Days of written demand therefor, and, failing prompt payment, shall, together with interest thereon at the highest rate then applicable to Revolving Loans hereunder from the date incurred by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant each Indemnified Party to maintain insurance as required until paid by the terms Borrowers, be added to the Liabilities of the Transaction DocumentsBorrowers and be secured by the Collateral. The provisions of this section 16 shall survive the satisfaction and payment of the other Liabilities and the termination of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (BBX Capital, Inc.)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby (a) Seller agrees to reimburse, hold harmless, indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or and defend Buyer and its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing persons (each an "Indemnified Party"if any), forthwith on demandemployees, attorneys, agents, partners representatives, successors and assigns (the "Buyer Indemnitees") from and against any and all damagesloss, lossessuit, claimsclaim, liabilities and related action, cause of action, proceeding (formal or informal), investigation, judgment, deficiency, actual or punitive damage, settlement, liability, expense or cost of any kind or amount whatever, including court costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as collectively, "Indemnified AmountsClaims") awarded against which results from or incurred by any of them arising arises out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating tois based upon:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach inaccuracy of any representation or warranty made by a Relevant Party Seller or Elmagco (other than Section 3.14 which is covered in Section 9.1(a)(iii) below), or the failure to perform or breach by Seller or Elmagco of any of covenant, obligation or agreement contained in this Agreement, the Exhibits or Schedules hereto, the bring-down certificate required by Section 8.1(d) and any amendments that may be entered into;
(ii) any pending or threatened litigation, claim or assessment against Elmagco (including but not limited to any claim based on tort liability, product liability, warranty, negligence or strict liability) designated by Buyer, in its officers) under or in connection with any Transaction Documentsole discretion, any Manager Report or any other information or report and set forth on Schedule 9.1 which is to be delivered by such Relevant Party or its officers in connection with a Transaction DocumentBuyer to Seller at Closing ("Seller's Liabilities"); provided, which however, that Seller shall have been false or incorrect in any material respect when made or deemed made;no liability under this Section 9.1(a)(ii) until and only to the extent that the aggregate Claims under this Section 9.1(a)(ii) exceed $317,000; and
(iii) any inaccuracy of the representation set forth in Section 3.14 or the failure by a Relevant Party of Seller to comply with pay any applicable lawtaxes, rule or regulation (including, without limitation, any securities lawTexas franchise tax liability accruing to either Elmagco or Seller, rule and any liability for gain or regulation pertaining loss on the sale of Shares pursuant to this Agreement arising out of or related to the acquisition transactions contemplated in this Agreement.
(a) (i) and 9.1(a)(iii) shall be against the Escrow Fund established pursuant to Section 9.2. Provided further, that of Collateralthe amount held in the Escrow Fund, no more than $1,500,000 thereof may be paid out to satisfy claims made pursuant to Section 9.1(a)(i), or . The entire amount of the nonconformity Escrow Fund shall be subject to being paid out to satisfy claims made pursuant to Section 9.1(a)(iii). The Indemnity Agreement contained in this Section 9.1(a) shall remain operative and in full force and effect regardless of any Contract Transfer Document investigation made by or other Collateral with any such applicable law, rule or regulation;on behalf of Buyer. Any indemnification payments made to Buyer shall be deemed an adjustment to the Purchase Price.
(ivb) Buyer agrees to hold harmless, indemnify and defend Seller and its officers, directors, controlling persons, employees, attorneys, agents, representatives, successors and assigns (the failure to vest "Seller Indemnitees") from and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateralagainst any loss, free and clear claim, cause of action, damage, liability, expense or cost of any Lien, whether existing at kind or amount whatever including court costs and reasonable attorneys' fees which result from or arise out of the time inaccuracy of any Loan representation or at any time thereafter;
(v) the failure to filewarranty made by Buyer, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliverperform or breach by Buyer of any covenant, obligation or agreement contained in this Agreement, the Exhibits or Schedules hereto, the bring-down certificate required by Section 8.2(c) and any delay amendments that may be entered into. The Indemnity Agreement contained in deliveringthis Section 9.1(b) shall remain operative and in full force and effect, regardless of any Required Document investigation made by or on behalf of Seller or Elmagco. Any indemnification payments made by Buyer to Seller shall be deemed an adjustment to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsPurchase Price.
Appears in 1 contract
Sources: Stock Purchase Agreement (Boots & Coots International Well Control Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Affected Parties, each of their respective Affiliates, and all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each each, an "“Indemnified Party"”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and reasonable related out-of-pocket costs and expenses, including reasonable attorneys' ’ fees and disbursements (all of the foregoing being collectively referred to as "“Indemnified Amounts"”) awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership transactions contemplated thereby (including the issuance or funding of Modification of, the Loans (fronting for, or any portion thereof) drawing under, any Letter of Credit), the LC Collateral Account, the Obligations or in respect of any the Collateral, excluding, however, Excluded Taxes and : (i) Indemnified Amounts to the extent resulting determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party Party, and (ii) recourse (except as finally determined by otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or the related Obligor’s refusal to pay; provided, however, that prior to the occurrence of an Event of Default, the Indemnified Parties shall only be entitled to seek indemnity for the reasonable fees and disbursements of a court of competent jurisdictionsingle law firm as special counsel to all such Indemnified Parties (and, no longer subject if required, a single law firm as local counsel to appeal or reviewall such Indemnified Parties in each relevant jurisdiction where the law firm acting as special counsel is not licensed to practice). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(iA) the obligation to repay the Lender pursuant to this Agreement and the grant creation of a security any Lien on, or transfer by any Loan Party of any interest to in, the Collateral Agent pursuant to other than as provided in the Intercreditor AgreementTransaction Documents;
(iiB) the breach of any representation or warranty made by a Relevant any Originator or Loan Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report Monthly Report, Weekly Report, computation of Cash Collateral Payment or any other information or report delivered by such Relevant or on behalf of any Originator or Loan Party or its officers in connection with a Transaction Documentpursuant thereto, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed mademade or delivered, as the case may be;
(iiiC) the failure by a Relevant any Loan Party to comply with any applicable law, rule or regulation (with respect to any Receivable or the related Contract and/or Invoice, including, without limitation, any securities law, rule state or regulation pertaining to local assignment of claims act or similar legislation prohibiting or imposing notice and acknowledgement requirements or other limitations or conditions on the acquisition sale of Collateral)participations in a Specified Government Receivable, or the nonconformity of any Receivable or the related Contract Transfer Document or other Collateral and/or Invoice with any such applicable law, rule or regulation;
(ivD) the failure to vest and maintain vested in the Collateral Agent Borrower a perfected ownership interest in all Collateral; or the failure to vest and maintain vested in the Administrative Agent, for the benefit of the Secured Parties, a valid and perfected first priority perfected security interest in and lien on the Collateral, free and clear of any other Lien, whether existing at other than a Lien arising solely as a result of an act of one of the time of any Loan Secured Parties, now or at any time thereafter;
(vE) unless the failure to fileBorrower has actual knowledge that the Administrative Agent has prepared a financing statement, amendment or any delay in filing any financing statements, assignment similar instrument or other similar instruments or documents document under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or , the failure to deliver, or any delay in delivering, any Required Document deliver to the Collateral Administrative Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation on a timely basis any such dispute based on preference financing statement, amendment or similar laws)instrument or document or to authorize its filing on a timely basis;
(viF) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool Receivable (including, without limitation, a defense based on such CP Unit's Receivables or any the related documents' Contract and/or Invoice not being a legal, valid and binding obligations obligation of an such Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms), or any other claim resulting from any action the sale of the services related to such Receivable or the furnishing or failure to act of a Relevant Partyfurnish such services;
(viiG) any matter described in Section 3.4;
(H) any failure of a Relevant Party any Loan Party, as the Borrower, the Servicer or otherwise, to perform its duties or obligations under in accordance with the provisions of this Agreement or the other Transaction DocumentsDocuments to which it is a party;
(viiiI) any tax or governmental fee or charge claim of breach by any Loan Party of any related Contract and/or Invoice with respect to any Receivable;
(other than an Excluded Tax), J) any Other Taxes (and all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same), which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other Administrative Agent’s security interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(xK) the commingling of collections on or related to the Contracts and other Collateral Collections of Receivables at any time with other funds;
(xiL) any liability investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Loan, the issuance of any Letter of Credit, the security interest in the Purchased Assets and Related Assets or any other investigation, litigation or proceeding relating to the Borrower or any of the Originators in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby (other than an investigation, litigation or proceeding (1) relating to a dispute solely amongst the Lenders (or certain Lenders) and the Administrative Agent or (2) excluded by Section 13.1(a));
(M) any products or professional liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract, Invoice or any Purchased Asset;
(N) any inability to litigate any claim against any Obligor in respect of any Receivable as a claim result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or cause otherwise from any legal action, suit or proceeding;
(O) the occurrence of action asserted any Event of Default of the type described in Section 10.1(e);
(P) any loss incurred by any person against an Indemnified Party on account of its or any other Indemnified Party's interests the Secured Parties as a result of the inclusion in the Contracts Borrowing Base of Private Receivables owing from any single Obligor and other Collateral, except its Affiliated Obligors which causes the aggregate Unpaid Net Balance of all such Private Receivables to exceed the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review)applicable Obligor Concentration Limit; or
(xiiQ) any loss resulting from failure of a Relevant Party amount that the Administrative Agent is required to maintain insurance as required by pay to any Collection Bank pursuant to the terms of a Collection Account Agreement because of the Transaction DocumentsBorrower’s failure to make such payment.
Appears in 1 contract
Sources: Credit and Security Agreement (Quest Diagnostics Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawBorrower shall indemnify, the Borrower hereby agrees to indemnify each of the Agenton an after-tax basis, the defend and hold harmless Agent and Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents of any of the foregoing affiliates (each an "Indemnified PartyPersons"), forthwith on demand, from and against ) in connection with any and all damagesexpenses, losses, claims, damages or liabilities and related costs and to which Agent, Lender or such Indemnified Persons may become subject (other than taxes, for which the provisions of Section 9(b) shall apply instead), insofar as such expenses, including reasonable attorneys' fees and disbursements losses, claims, damages or liabilities (all or actions or other proceedings commenced or threatened in respect thereof) arise out of the foregoing being collectively transactions referred to as "Indemnified Amounts") awarded against in this Loan Agreement or incurred by arise from any use or intended use of them arising the proceeds of the Advances, or in any way arise out of activities of Borrower that violate environmental laws, and to reimburse Agent, Lender and each Indemnified Person, upon their demand, for any reasonable legal or relating other out-of-pocket expenses incurred in connection with investigating, defending or participating in any such loss, claim, damage, liability, or action or other proceeding, whether commenced or threatened (whether or not Agent or Lender or any such person is a party to any action or proceeding out of which any such expense arises); provided that nothing in this Section shall obligate Borrower to pay the Transaction Documents normal expenses of Lender in the administration of this Loan Agreement (or the ownership or funding of the Loans (or any portion thereof) or in respect issuance of any CollateralEquipment Note or the making of any Advance, excluding, however, Excluded Taxes in each case after the Closing Date) in the absence of pending or threatened litigation or other proceedings or the claims or threatened claims of others and Indemnified Amounts then only to the extent resulting arising therefrom. Notwithstanding the foregoing, Borrower shall have no obligation hereunder to an Indemnified Person with respect to indemnified liabilities which have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemnified Party (Person, as finally determined by a final and nonappealable judgment by a court of competent jurisdiction, or which have resulted from a claim brought by Borrower against an Indemnified Person for breach in bad faith of such Indemnified Person’s obligations hereunder in which Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. In the case of an investigation, no longer subject litigation or proceeding to appeal which the indemnity in this paragraph applies, such indemnity shall be effective whether or review). Without limiting the foregoingnot such investigation, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of litigation or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made proceeding is brought by a Relevant Party (or Borrower, any of its officers) under Borrower’s equity holders or in connection with any Transaction Documentcreditors, any Manager Report an Indemnified Person or any other information person or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lienentity, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or Indemnified Person is otherwise a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Computer Sciences Corp)
General Indemnity. Without limiting The Borrower hereby indemnifies, exonerates, and holds the Bank and any holder of the Note and each of the officers, directors, employees and agents of the Bank and any such holder (collectively, the "Indemnitees") harmless from and against any and all obligations, losses, liabilities, damages, costs, expenses, actions, suits, judgments, penalties and claims of any kind whatsoever (including, without limitation, court costs and reasonable attorneys' fees and disbursements in connection with any investigative, administrative or judicial proceeding commenced or threatened (whether or not such Indemnitee shall be designated a party thereto)) which may be imposed on, incurred by or asserted against any Indemnitee, in any a manner relating to or arising out of (a) this Agreement or any other agreement, instrument or document executed and delivered by the Borrower in connection herewith, (b) the use or intended use of the proceeds of any Loan or Letter of Credit, or (c) the Borrower's failure to comply with any tax law or any other law, statute or governmental rule or regulation applicable to the Borrower (the "Indemnified Liabilities"); provided, however, that the Borrower shall have no obligation to any Indemnitee hereunder with respect to (i) Indemnified Liabilities arising from the gross negligence or willful misconduct of such Indemnitee, (ii) any third-party contractual rights to which any such Person Indemnitee is bound or (iii) the violation of any law, rule, regulation or court or administrative decree to which any Indemnitee is bound. If and to the extent that the foregoing undertaking may have hereunder or under applicable lawbe unenforceable for any reason whatsoever, the Borrower hereby agrees to indemnify make the maximum contribution to the payment and satisfaction of each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each Indemnified Liabilities which is permissible under applicable law. The provisions of their respective Affiliates, successors, transferees, participants and assigns undertakings and all officers, directors, shareholders, controlling persons, employees indemnification set forth in this Section 17.4 shall survive satisfaction and agents of any payment of the foregoing (each an "Indemnified Party"), forthwith on demand, from Note and against any and all damages, losses, claims, other liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or hereunder and any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity termination of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Universal Electronics Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawThe Company shall pay, indemnify, and hold each Bank, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), Agents and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personscounsel, employees agents and agents of any of the foregoing attorneys-in-fact (each each, an "Indemnified PartyPerson"), forthwith on demand, ) harmless from and against any and all damagesliabilities, obligations, losses, claimsdamages, liabilities and related costs and expensespenalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable attorneys' fees and disbursements out-of-pocket expenses of counsel and the allocated cost of internal counsel) of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement and any other Loan Documents, or the transactions contemplated hereby and thereby, and with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to this Agreement or the Loans, or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all of the foregoing being collectively referred to as foregoing, collectively, the "Indemnified AmountsLiabilities"); provided, that the Company shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities (i) awarded against or incurred by any of them arising out of or relating to from the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party Person (ii) with respect to judicial proceedings commenced against such Indemnified Person by any holder of the debt or equity securities of such Indemnified Person based solely on the rights afforded such holder in its capacity as finally determined such, and (iii) with respect to judicial proceedings commenced solely against such Indemnified Person by another Bank, Assignee or Participant to the extent based on a court cause of competent jurisdictionaction against such Indemnified Person and not the Company. The obligations in this Section 10.05 shall survive payment of all other Obligations. The Company shall have the right to undertake, no longer subject conduct and control through counsel of its own choosing (which counsel shall be acceptable to appeal or review)the Indemnified Persons acting reasonably) and at the sole expense of the Company, the conduct and settlement of any Indemnified Liabilities, and the Indemnified Person shall cooperate with the Company in connection therewith; provided that the Company shall permit the Indemnified Person to participate in such conduct and settlement through counsel chosen by the Indemnified Person, but the fees and expenses of such counsel shall be borne by the Indemnified Person. Without limiting Notwithstanding the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this - 51 - Cinemark Investments Credit Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which 61 Person shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party right to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with employ its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect theretoown counsel, and all costs and expenses, including the reasonable fees and expenses of such counsel in defending against shall be at the same, which may arise by reason of the loans or commitments hereunder or Company's costs and expense if the interests of the Company and the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained Person become adverse in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a such claim or cause course of action asserted by any person against an Indemnified Party on account action; provided, however, the Company, in such event, shall only be liable for the reasonable legal expenses of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out one counsel for all of such Indemnified Party's gross negligence Persons. The Company shall not be liable for any settlement of any claim or wilful misconduct (as finally determined by a court of competent jurisdictionaction effected without its prior written consent, no longer subject such consent not to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsbe unreasonably withheld. All amounts owing under this Section 10.05 shall be paid within 30 days after demand.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Sections 12.12 and 12.15, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, Borrowers agree to indemnify, pay and hold the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or Bank and its Affiliate), each of their respective Affiliates, successors, transferees, participants successors and assigns and all the officers, directors, shareholdersemployees, controlling personsagents, employees and agents of any affiliates of the foregoing Bank and its successors and assigns (each an collectively the "Indemnified PartyIndemnitees"), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the sameany Indemnitee in any manner relating to or arising out of this Loan Agreement, which may arise by reason any of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Other Agreements or any other interest agreements executed and delivered by any Borrower or any guarantor of the Liabilities in connection herewith, the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment or proposal letter delivered by the Bank, Required Document, Contract Transfer Document the Bank's agreement to make the Loans or related agreements the use or intended use of the proceeds of any of the Loans hereunder (including without limitation in connection collectively the "Indemnified Liabilities"); provided that Borrowers shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Borrowers shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section shall survive satisfaction and payment of the Liabilities and termination of this Loan Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or Subject to the Intercreditor Agreement and Section 14.5.
(i) to the fullest extent permitted under applicable law, either the Borrower hereby agrees or NAFI shall pay, indemnify, and hold Lender and its employees (each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, penalties, actions, judgements, suits, costs, expenses and damages (including reasonable attorney's fees) arising directly from any investigation, litigation or proceeding (including any case, action or proceeding before any court or other Governmental Authority relating to indemnify bankruptcy, reorganization, insolvency, liquidation, dissolution or relief of debtors or any appellate proceeding), (i) the negligence, bad faith, willful misconduct, misfeasance, malfeasance or theft committed by any director, officer, employee or agent of the Borrower or NAFI, as the case may be; (ii) the breach by the Borrower or NAFI, as the case may be, of any representation, warranty or covenant under this Agreement; or (iii) the violation by the Borrower or NAFI of any federal, state or foreign law, rule or regulation, or any judgment, order or decree applicable to it; whether or not any Indemnified Person is a party hereto (all the foregoing, collectively, the "Indemnified Liabilities"); provided that neither the Borrower nor NAFI shall have any obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the gross negligence, willful misconduct or violation of the Transaction Documents by any Indemnified Person;
(ii) to the fullest extent permitted under applicable law, each of the AgentBorrower and NAFI hereby acknowledges and agrees that it shall upon demand, indemnify, protect, save, defend and hold harmless the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damagesobligations, fees, liabilities, losses, damages, penalties claims, liabilities and related demands, actions, suits, judgments, costs and expenses, including reasonable attorneys' fees legal expenses and disbursements attorneys fees, of every kind and nature whatsoever (all collectively, "INDEMNIFIABLE EXPENSES"), imposed on, incurred by, or asserted against the Lender by any Person in connection with any (i) Revived Claim (as defined in the Intercreditor Agreement) and (ii) payments made by the Lender in connection with preference payments made to Noteholders and Certificateholders (each as defined in the Intercreditor Agreement), pursuant to certain provisions of the foregoing being collectively referred relevant Underlying Transaction Documents, including, but not limited to as "Indemnified Amounts"Section 4.05 of the 1995-1 and 1996-1 Pooling and Servicing Agreements, Section 5.19 of the 1997-1 and 1998-1 Indentures and Section 6.2 of the 1997-1 and 1998-1 Sale and Servicing Agreement; and
(iii) awarded against to the fullest extent permitted under applicable law, each of the Borrower and NAFI hereby acknowledges and agrees that it shall upon demand, indemnify, protect, save, defend and hold harmless the Lender from Indemnifiable Expenses resulting in an out-of-pocket expenditure or incurred payment by any the Lender to the extent such Indemnifiable Expenses resulted from the existence of them arising out of or relating to the Transaction Documents or the ownership or funding any of the Loans (accommodations, consents or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined waivers made by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant with respect to this Agreement and either FSA's or the grant of a security interest to the Collateral Agent pursuant to Senior Lien ▇▇▇▇▇▇'▇ (▇▇ch as defined in the Intercreditor Agreement;
(ii) the breach of any representation rights or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsremedies thereunder.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (National Auto Finance Co Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to SECTION 11.2(a), whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify each pay and hold the Bank, its affiliates and any holder of the Agentany Notes, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees successors and agents of any of assigns (collectively called the foregoing (each an "Indemnified PartyINDEMNITEES"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees (or any of them), which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment letters delivered by the Bank, Required Documentthe Bank's agreement to make the Loans, Contract Transfer Document or related agreements the use or intended use of the proceeds of any of the Loans (including without limitation in connection the "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, that the Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of the Transaction Documentsthem.
Appears in 1 contract
Sources: Credit Agreement (Rehabilicare Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 8.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify defend, indemnify, pay and hold the Agent and each Bank and any holders of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents of any affiliates of the foregoing Agent and each Bank and such holders (each an collectively, the "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related disbursements, costs and expensesexpenses of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to the Transaction Documents or the ownership or funding this Agreement, any of the Loans other
(or any portion thereofa) or in Borrower shall have no obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes to indemnified liabilities directly and Indemnified Amounts to the extent solely resulting from the gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final, no longer subject to appeal or review). Without limiting the foregoing, the nonappealable order and (b) Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the have no obligation to repay indemnify the Lender pursuant Agent or any Bank with respect to this Agreement disputes between the Agent and any Bank or with respect to disputes among the grant Banks. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of a security interest any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 8.04 shall survive satisfaction and payment of the interest Borrower's Obligations and the termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Laclede Gas Co)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 8.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify defend, indemnify, pay and hold Agent and each Lender and any holder(s) of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Agent and each Lender and such holder(s) (collectively, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement, any other Transaction Document and/or any other agreement, document or relating instrument heretofore, now or hereafter executed and delivered by Borrower and/or any other Obligor in connection herewith or therewith, Agent’s and each Lender’s agreement to make the Transaction Documents Loan under this Agreement or the ownership use or funding intended use of the Loans proceeds of the Loan under this Agreement (or any portion thereof) or in collectively, the “Indemnified Liabilities”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and to Indemnified Amounts to Liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any Law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable Law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the this Section 8.05 shall survive satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Borrower’s Obligations and the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 10.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify indemnify, pay and hold each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Agents, each of their respective Affiliatesthe Lenders and any other holder(s) of the Notes, successors, transferees, participants and assigns and all the officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of them (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any manner relating to or arising out of this Agreement, any of the foregoing being collectively referred to as "Indemnified Amounts") awarded against other Transaction Documents or incurred any other agreement, document or instrument executed and delivered by the Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by any of them arising out the Agents or any of or relating the Lenders, the Lenders' agreements to make the Transaction Documents Loans hereunder or the ownership use or funding intended use of the Loans (or any portion thereof) or in respect proceeds of any CollateralLoan hereunder (collectively, excluding, however, Excluded Taxes and Indemnified Amounts the "indemnified liabilities"); provided that the Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 10.5 shall survive satisfaction and payment of the interest Borrower's Obligations and the termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Staffmark Inc)
General Indemnity. Without limiting Borrower agrees that while Lender has no liability to any other rights which person in tort or otherwise as lender and that Lender is not an owner or operator of the Property, Borrower shall, at its sole expense (but subject to the provisions of Section 8.01 above), protect, defend, release, indemnify and hold harmless (“indemnify”) the Indemnified Parties from any such Person may have hereunder Losses (defined below) imposed on, incurred by, or under applicable lawasserted against the Indemnified Parties, directly or indirectly, arising out of or in connection with the Property, the Borrower hereby agrees Loan, or the Documents, including Losses; provided, however, that the foregoing indemnities shall not apply to indemnify each any Losses caused by (i) the gross negligence of Lender, (ii) the willful misconduct of Lender, (iii) an illegal act by Lender, or (iv) fraud on the part of Lender; and provided further that the foregoing indemnities shall not apply to claims brought by or on behalf of Lender or any of the Agentother Indemnified Parties unless such claims are for indemnification against claims imposed on, incurred by, or asserted against Lender or such other Indemnified Parties by a third party. The term “Losses” shall mean any claims, suits, liabilities (including strict liabilities), actions, proceedings, obligations, debts, damages, losses (including, without limitation, unrealized loss of value of the Property), Costs, expenses, fines, penalties, charges, fees, judgments, awards, and amounts paid in settlement of whatever kind including attorneys’ fees (both in-house staff and retained attorneys) and all other costs of defense. The term “Indemnified Parties” shall mean (a) Lender, XXXXXXXX(b) any prior owner or holder of the Note, (c) any existing or prior servicer of the Collateral Agent Loan, (if other than d) Trustee, (e) the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling personspartners, members, employees and agents trustees of any of the foregoing foregoing, and (f) the heirs, legal representatives, successors and assigns of each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 7(f), whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify each of pay and hold the Agent, the Lender, XXXXXXXXLenders, the Collateral Agent (if other than the Borrower or its Affiliate)Agent, each of their respective Affiliatesaffiliates and any holder of any Note, successors, transferees, participants and assigns and all their respective officers, directors, shareholdersemployees, controlling personsagents, employees successors and agents of any of assigns (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for any securities lawof such Indemnitees in connection with any investigative, rule administrative or regulation pertaining to the acquisition judicial proceeding commenced or threatened, whether or not any of Collateralsuch Indemnitees shall be designated a party thereto), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable lawthat may be imposed on, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to fileincurred by, or asserted against the Indemnitees (or any delay of them), in filing any financing statementsmanner relating to or arising out of the Loan Documents, assignment the statements contained in any proposal letters or other similar instruments correspondence delivered by either or documents under the UCC of any applicable jurisdiction both Lenders or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicablewhether in person, by mail, courier or any electronic means), the Lenders’ agreement to make the Loan to the Borrower, or the use or intended use of the proceeds of the Loan (the “Indemnified Liabilities”); provided, however, that the Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of an Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it violates any dispute relating law or public policy, the Borrower shall contribute the maximum portion that it is permitted to the enforceabilitypay and satisfy under applicable law, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment and satisfaction of any Contract all Indemnified Liabilities incurred by the Indemnitees or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding of them. The obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from the Borrower under this Section 13(d) and under Section 7(f) shall survive any action or failure to act termination of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Air T Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, (a) Indemnification by the Borrower hereby agrees to Company. The Company will indemnify each of and hold harmless the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Purchaser, each of their respective Affiliatesits directors, successors, transferees, participants fund managers and assigns and all officers, directorsand each person, shareholdersif any, controlling persons, employees and agents who controls the Purchaser within the meaning of any Section 15 of the foregoing Securities Act of 1933, as amended (each an the "Indemnified PartySecurities Act"), forthwith on demandor Section 20(a) of the Securities Exchange Act, as amended (the "Exchange Act"), from and against any and all damages, losses, claims, damages, liabilities and related expenses (including reasonable costs of defense and expenses, including investigation and all reasonable attorneys' fees fees) to which the Purchaser, each of its directors, fund managers and disbursements officers, and each person, if any, who controls the Purchaser may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities and expenses (all or actions in respect thereof) arise out of or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained, or incorporated by reference, in the Registration Statement relating to the Common Stock being sold to the Purchaser (including any Prospectus Supplement filed in connection with the transactions contemplated hereunder which are a part of it), or any amendment or supplement to it, or (ii) the omission or alleged omission to state in that Registration Statement or any document incorporated by reference in the Registration Statement, a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that the Company shall not be liable under this Section 1(a) to the extent that a court of competent jurisdiction shall have determined by a final judgment (with no appeals available) that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act, undertaken or omitted to be taken by the Purchaser or such person through its bad faith or willful misconduct; provided, however, that the foregoing being collectively referred indemnity shall not apply to as "Indemnified Amounts") awarded against any loss, claim, damage, liability or incurred by any of them expense to the extent, but only to the extent, arising out of or relating based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Transaction Documents Company by the Purchaser expressly for use in the Registration Statement, any preliminary prospectus or the ownership or funding of the Loans prospectus (or any portion thereof) amendment or in respect of any Collateralsupplement thereto); and provided, excludingfurther, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws that with respect to the interests prospectus, the foregoing indemnity shall not inure to the benefit of the Borrower Purchaser or any Secured Party to such person from whom the person asserting any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any disputeloss, claim, offset damage, liability or defense (other than discharge in bankruptcy) expense purchased Common Stock, if copies of the prospectus were timely delivered to the payment Purchaser pursuant hereto and a copy of the prospectus (as then amended or supplemented if the Company shall have furnished any Contract amendments or supplements thereto) was not sent or given by or on behalf of the Purchaser or any CP Unit insuch person to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Stock to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense.
(b) The Company will reimburse the Purchaser and each such controlling person promptly upon demand for any legal or other costs or expenses reasonably incurred by the Purchaser or any controlling person in investigating, defending against, or purporting preparing to defend against any such claim, action, suit or proceeding, except that the Company will not be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related liable to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of extent a claim or cause of action asserted by which results in a loss, claim, damage, liability or expense arises out of, or is based upon, an untrue statement, alleged untrue statement, omission or alleged omission, included in any person against an Indemnified Party on account of its Registration Statement, prospectus or Prospectus Supplement or any other Indemnified Party's interests amendment or supplement to the thereto in reliance upon, and in conformity with, written information furnished by the Purchaser to the Company for inclusion in the Contracts and other CollateralRegistration Statement, except to the extent that such liability arising out of such Indemnified Party's gross negligence prospectus or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsProspectus Supplement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Columbia Laboratories Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 12.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold the Lender and any holder of any Notes, and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents of any affiliates of the foregoing Lender and such holders (each an collectively called the "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment letters delivered by the Lender, Required Documentthe Lender's agreement to make the Loans or to issue Letters of Credit hereunder, Contract Transfer Document or related agreements the use or intended use of any Letters of Credit, or the use or intended use of the proceeds of any of the Loans (including without limitation in connection the "Indemnified Liabilities"); provided, however, that the Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such Indemnified Party's gross negligence any law or wilful misconduct (as finally determined by a court public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required all indemnified liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 10.2 shall survive satisfaction and payment of the Obligations and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payments pursuant to Section 9.3, the Borrower hereby Company agrees to indemnify each indemnify, pay, and hold Boston Chicken and any holder of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of Boston Chicken and any of such holder (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and costs, expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative, or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against any Indemnitee, in any manner relating to or arising out of this Agreement, the sameNote, which may arise by reason of the loans or commitments hereunder or Security Instruments and the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof exhibits or any other interest agreements or document executed and delivered by the Company in connection therewith, the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements Company's operation of its business (including without limitation in connection any damage to public or worker health and safety or the environment), Boston Chicken's agreement to make the Loan hereunder, or the use or intended use of the proceeds of the Loan (the "indemnified liabilities"); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay, and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Company shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required all indemnified liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 9.11 shall survive satisfaction and payment of the Company's obligations hereunder and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 11.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the each Borrower hereby agrees to indemnify indemnify, pay and hold each of the Agent, the Agent and each Lender, XXXXXXXX, and the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any each of each Agent and each Lender (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expenses, disbursements of any kind or nature whatsoever (including without limitation the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by counsel for any of them such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against any Indemnitee, in any manner relating to or arising out of this Agreement or relating any Related Agreement as it relates to either Borrower or any Designated Subsidiary, the Transaction Documents statements contained in any commitment letter delivered by any Agent or any Lender, any Agent's or any Lender's agreement to make the Loans or to issue Letters of Credit hereunder to or for the benefit of either Borrower, the use or intended use of any Letters of Credit issued on the Application of either Borrower, or the ownership use or funding intended use of the proceeds of any of the Loans hereunder by either Borrower (or the "indemnified liabilities"); provided that neither Borrower shall have any portion thereof) or in obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdictionIndemnitee. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or review). Without limiting the foregoingpublic policy, the each applicable Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) pay under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) law to the payment and satisfaction of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsindemnified liabilities.
Appears in 1 contract
Sources: Loan and Security Agreement (Pioneer Companies Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 8.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify defend, indemnify, pay and hold the Agent and each Bank and any holders of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents of any affiliates of the foregoing Agent and each Bank and such holders (each an collectively, the "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related disbursements, costs and expensesexpenses of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all disb ursements of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower in connection herewith or therewith, the ownership statements contained in any commitment letters delivered by the Agent or funding any Bank, the agreement of the Banks to make the Loans (under this Agreement or any portion thereof) the use or in respect intended use of the proceeds of any CollateralLoan under this Agreement (collectively, excluding, however, Excluded Taxes the "indemnified liabilities"); provided that
(a) Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities directly and Indemnified Amounts to the extent solely resulting from the gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final, no longer subject to appeal or review). Without limiting the foregoing, the nonappealable order and (b) Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the have no obligation to repay indemnify the Lender pursuant Agent or any Bank with respect to this Agreement disputes between the Agent and any Bank or with respect to disputes among the grant Banks. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of a security interest any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 8.04 shall survive satisfaction and payment of the interest Borrower's Obligations and the termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Laclede Gas Co)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to and without limitation of the indemnity set forth in Section 9.1 and in addition to the payment of expenses pursuant to Section 10.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby each Loan Party agrees to indemnify each indemnify, pay and hold Lender and any holder of any Notes, and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Lender and such holders (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensesreasonable costs, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the sameany Indemnitee, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateralthis Agreement, any portion thereof Related Agreement or any other interest agreements executed and delivered by any Loan Party or any other Obligor in connection herewith, the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment letter delivered by Lender, Required DocumentLender's agreement to make the Loans or to issue Letters of Credit hereunder, Contract Transfer Document the use or related agreements intended use of any Letters of Credit, or the use or intended use of the proceeds of any of the Loans hereunder (including without limitation in connection the "indemnified liabilities"); provided that the Loan Parties shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the -102- 111 preceding sentence may be unenforceable because it violates any law or public policy, each Loan Party shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required all indemnified liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 9.2 shall survive satisfaction and payment of the Liabilities and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to SECTION 11.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies and agrees to indemnify hold each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, Indemnitee harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, and related costs and expenses, reasonable expenses of any kind or nature whatsoever (including without limitation the reasonable attorneys' fees and disbursements (all of counsel, and, without duplication, the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by allocated cost of in-house counsel, for any of them such Indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnities shall be designated a party thereto) that may be imposed on, incurred by, or asserted against any Indemnitee, in any manner relating to or arising out of this Agreement or relating any Related Agreement, Agent's or any Lender's agreement to make the Transaction Documents Loans or issue the Letters of Credit hereunder, or the ownership use or funding intended use of any of the Loans or Letters of Credit hereunder or proceeds thereof (or the "indemnified liabilities"); provided, that Borrower shall not have any portion thereof) or in obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdictionIndemnitee. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement and the grant of a security interest pay under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnities or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this SECTION 9.2 shall survive satisfaction and payment of the interest Liabilities and termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Unifrax Investment Corp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law(i) The Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demandParties for, from and against any and all damages, losses, claims, suits, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateralstrict liabilities), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable lawadministrative and judicial actions and proceedings, rule or regulation;obligations, debts, damages, losses,
(ivi) shall become due and payable ten (10) days after demand and shall bear interest at the failure Default Rate from the tenth (10th) day after demand until paid.
(ii) The Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly arising out of or in any way relating to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien any tax on the Collateralmaking and/or recording of this Agreement, free and clear the Note or any of any Lien, whether existing at the time of any other Loan or at any time thereafter;Documents.
(viii) The Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the failure to file, or Indemnified Parties from and against any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool and all Losses (including, without limitation, reasonable attorneys' fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a defense based on prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in the Lender's sole discretion) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under the Borrower's covenants with respect to ERISA and employee benefits plans contained herein.
(iv) Promptly after receipt by an Indemnified Party under this Section 5.1(L) of notice of the making of any claim or the commencement of any action, such CP Unit's or any related documents' Indemnified Party shall, if a claim in respect thereof is to be made by such Indemnified Party against the Borrower under this Section 5.1(L), notify the Borrowers in writing, but the omission so to notify the Borrower will not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting relieve the Borrower from any liability which it may have to any Indemnified Party under this Section 5.1(L) or otherwise unless and to the extent that the Borrower did not otherwise possess knowledge of such claim or action and such failure resulted in the forfeiture by the Borrower of substantial rights and defenses. In case any such claim is made or failure action is brought against any Indemnified Party and such Indemnified Party seeks or intends to act seek indemnity from the Borrower, the Borrower will be entitled to participate in, and, to the extent that it may wish, to assume the defense thereof with a single counsel reasonably satisfactory to the Lender; and, upon receipt of a Relevant Party;
notice from the Borrower to such Indemnified Party of its election so to assume the defense of such claim or action and only upon approval by the Indemnified Party of such counsel (vii) any failure of a Relevant Party such approval not to perform its duties be unreasonably withheld or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Taxdelayed), all the Borrower will not be liable to such Indemnified Party under this Section 5.1(L) for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof. Notwithstanding the preceding sentence, each Indemnified Party will be entitled to employ counsel separate from such counsel for the Borrower and from any other party in such action if such Indemnified Party reasonably determines that a conflict of interest and penalties thereon or with respect theretoexists which makes representation by counsel chosen by the Borrower not advisable. In such event, and all costs and expenses, including the reasonable fees and expenses disbursements of such separate counsel in defending against will be paid by the sameBorrower, which may arise by reason provided that the Borrower shall not be required to pay for the fees and disbursements of the loans or commitments hereunder or the interests more than one separate counsel to represent all of the Indemnified Parties in collectively. The Borrower shall not, without the prior written consent of an Indemnified Party, settle or lien on the Contracts and other Collateral, any portion thereof compromise or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related consent to the Contracts and other Collateral at entry of any time judgment with other funds;
respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (xi) any liability arising out of a whether or not such Indemnified Party is an actual or potential party to such claim or cause action) unless such settlement, compromise or consent includes an unconditional release of action asserted by any person against an each Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such from all liability arising out of such claim, action, suit or proceeding. Each Indemnified Party's gross negligence Party shall not enter into a settlement of or wilful misconduct (consent to the entry of any judgment with respect to any action, claim, suit or proceeding as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant which an Indemnified Party would be entitled to maintain insurance as required by indemnification hereunder without the terms prior written consent of the Transaction DocumentsBorrower. The provisions of and undertakings and indemnification set forth in this Section 5.1(L) shall survive the satisfaction and payment of the Indebtedness and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law(a) Lessee assumes all risk and liability for, the Borrower hereby agrees to and shall defend, indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each keep Lessor harmless on an "Indemnified Party"), forthwith on demand, after-tax basis from and against any and all damagesliabilities, obligations, losses, damages, penalties, claims, liabilities and related actions, suits, costs and expenses, including reasonable attorneys' attorney's fees and disbursements (all expenses, of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or whatsoever kind and nature, imposed on, incurred by or asserted against Lessor, in any of them way relating to or arising out of the manufacture, purchase, acceptance, rejection, ownership, possession, use, selection, delivery, installation, importation, exportation, lease, operation, condition, sale, return or relating to the Transaction Documents or the ownership or funding other disposition of the Loans (Equipment or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation thereof (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document claim for latent or other Collateral with defects, whether or not discoverable by Lessee or any such applicable lawother person, rule any claim for negligence, tort or regulation;strict liability, any claim under any environmental protection or hazardous waste law and any claim for patent, trademark or copyright infringement). Lessee will not be required to indemnify Lessor under this Section for loss or liability arising from events which occur after the Equipment has been returned to Lessor or for loss or liability caused directly and solely by the gross negligence or willful misconduct of Lessor. As used in this Section, "Lessor" will also include any ------ director, officer, employee, partner, member, agent, successor or assign of Lessor. Lessee's obligations under this Section shall survive the expiration, cancellation or termination of the Lease.
(ivb) Lessee shall indemnify and keep Lessor harmless from any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses, including reasonable attorney's fees and expenses, of whatsoever kind and nature, imposed on, incurred by or asserted against Lessor, in any way relating to or arising out of the failure inability of Lessor to vest and maintain vested in exercise its rights against the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, Equipment or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool part thereof (including, without limitation, a defense based on such CP Unit's its inability to retake, repossess or any related documents' not being legal, valid otherwise have its rights as the owner thereof recognized and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Taxenforced), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.
Appears in 1 contract
Sources: Master Lease Agreement (Charter Communications International Inc /Tx/)
General Indemnity. Without limiting Debtor hereby assumes liability for, and does hereby agree, whether or not any other rights which any such Person may have hereunder of the transactions contemplated hereby, by the Security Instruments or under applicable lawthe Notes are consummated, the Borrower hereby agrees to indemnify indemnify, protect, save, defend and hold harmless Secured Party and each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersstockholders, controlling personssuccessors, employees assigns, agents and agents servants (for purposes of any this Article VI, each of the foregoing (each an may be referred to individually as a "Indemnified PartyBeneficiary"), forthwith on demand, ) from and against any and all damagesobligations, fees, liabilities, losses, damages, penalties, claims, liabilities and related demands, actions, suits, judgments, costs and expenses, including including, without limitation, reasonable attorneys' legal fees and disbursements (all expenses, of the foregoing being collectively referred every kind and nature whatsoever imposed on, incurred by, or asserted against any Beneficiary, in any way relating to as "Indemnified Amounts") awarded against or incurred by any of them arising out of (a) the manufacture, construction, ordering, purchase, acceptance or relating rejection, financing, ownership, titling or retitling, registration or re-registration, acceptance, leasing, subleasing, possession, use, operation, maintenance, storage, removal, sale, delivery or other disposition of any item of Equipment, including, without limitation, any of such as may arise from (i) loss or damage to the Transaction Documents any property or the ownership death or funding injury to any person, (ii) patent or latent defects in any item of the Loans Equipment (whether or not discoverable by Debtor or any portion thereofBeneficiary), (iii) any claims based on strict liability in tort or in respect of otherwise, (iv) any Collateralclaims based on patent, excluding, however, Excluded Taxes trademark or copyright infringement and Indemnified Amounts to (v) any claims based on liability arising under the extent resulting from gross negligence applicable environmental or willful misconduct noise or pollution control law or regulation or (b) any failure on the part of Debtor to perform or comply with any of the terms of the Security instruments or the Notes or (c) any Security Instrument or the Notes. Debtor shall not be required to indemnify any Beneficiary for any claims resulting from acts which would constitute the willful misconduct or gross negligence of such Indemnified Beneficiary. Debtor shall give Secured Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach prompt notice of any representation occurrence, event or warranty made condition known to Debtor as a consequence of which any Beneficiary is or is reasonably likely to be entitled to indemnification hereunder. Debtor shall promptly upon demand of any such Beneficiary reimburse such Beneficiary for amounts expended by a Relevant Party (or any of its officers) under or it in connection with any Transaction Documentof the foregoing or pay such amounts directly. Debtor shall be subrogated to a Beneficiary's rights in any matter with respect to which Debtor has actually reimbursed such Beneficiary for amounts expended by it or has actually paid such amounts directly pursuant to this Section 6.1. In case any action, suit or Proceeding is brought against any Manager Report or any other information or report delivered by such Relevant Party or its officers Beneficiary in connection with any claim indemnified against hereunder, such Beneficiary will, after receipt of notice of the commencement of such action, suit or Proceeding, notify Debtor thereof, enclosing a Transaction Documentcopy of all papers served upon such Beneficiary. Debtor may, which shall have been false and upon any Beneficiary's request will, at Debtor's expense, resist and defend such action, suit or incorrect Proceeding, or cause the same to be resisted or defended by counsel selected by Debtor and reasonably satisfactory to such Beneficiary and in the event of any material respect when made or deemed made;
(iii) the failure by a Relevant Party Debtor to comply with any applicable lawdo so, rule or regulation Debtor shall pay ail costs, fees and expenses (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unitreasonable attorney's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs fees and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise ) incurred by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation such Beneficiary in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on such action, suit or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsProceeding.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 7(f), whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify each of the Agent, pay and hold the Lender, XXXXXXXXits affiliates and any holder of any Note, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees successors and agents of any of assigns (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees (or any of them), which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractproposal letters or other similar correspondence delivered by the Lender (whether in person, Required Documentby mail, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its courier or any other electronic means), the Lender’s agreement to make the Loans, or the use or intended use of the proceeds of the Loans (the “Indemnified Party's interests in Liabilities”); provided, however, that the Contracts and other Collateral, except Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of an Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The obligations of the Transaction DocumentsBorrower under this Section 14(d) and under Section 7(f) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Air T Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 8.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of any of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of Lender and such holder(s) (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement, the other Transaction Documents, or relating other agreements executed and delivered by Borrower, any Subsidiary Holding Company, any Subsidiary Bank or any other Obligor in connection herewith, the statements contained in any commitment letters delivered by Lender, Lender’s agreement to make the Loan hereunder or the use or intended use of the proceeds of the Loan hereunder (the “Indemnified Liabilities”); that Borrower shall have no obligation to the Transaction Documents or Indemnitees with respect to Indemnified Liabilities arising from the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on of the part of such Indemnified Party (Indemnitees as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 8.05 shall survive satisfaction and payment of the interest Obligations and termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder Whether or under applicable lawnot the transactions contemplated hereby are consummated, the Borrower hereby agrees to indemnify each of Company shall indemnify, defend and hold the AgentBank, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), Affiliates and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personscounsel, employees agents and agents of any of the foregoing attorneys-in-fact (each each, an "Indemnified PartyPerson"), forthwith on demand, ) harmless from and against (and will reimburse each Indemnified Person as the same are incurred for) any and all damagesliabilities, obligations, losses, claimsdamages, liabilities and related costs and expensespenalties, including reasonable attorneys' fees actions, judgments, suits, costs, charges, expenses and disbursements (all including Attorney Costs (other than the allocated cost of in-house legal services incurred in connection with the matters referred to in Section 10.04(a)) of any kind or nature whatsoever which may at any time (including at any time following repayment of the foregoing being collectively referred to as "Indemnified Amounts"Loans) awarded against or be imposed on, incurred by or asserted against any of them such Person in any way relating to or arising out of this Agreement or relating any document contemplated by or referred to the Transaction Documents herein, or the ownership or funding of the Loans (transactions contemplated hereby, or any portion thereof) action taken or in respect of omitted by any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) Person under or in connection with any Transaction Documentof the foregoing, including with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to or arising out of this Agreement or the Loans or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the "Indemnified Liabilities"); provided that the Company shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the gross negligence or willful misconduct of such Indemnified Person. In connection with any claim, action, suit or proceeding, the Company shall, at the direction of any Indemnified Person and at the Company's sole cost and expense, defend such Indemnified Person using legal counsel satisfactory to such Indemnified Person in such Indemnified Person's sole discretion; provided that, in the event that the Company is resisting or defending any such claim, action, suit or proceeding, any Manager Report or any other information or report delivered separate Attorney Costs incurred by such Relevant Party Indemnified Person in connection therewith shall be for such Indemnified Person's own account until such time as (i) the Indemnified Person assumes the resistance or its officers defense of such claim, action, suit or proceeding or (ii) there exists a conflict of interest between the Company and such Indemnified Person in respect of such claim, action, suit or proceeding; provided further that, in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset action, suit or defense (other than discharge proceeding, in bankruptcy) to no event shall the payment of any Contract or any CP Unit in, or purporting to Company be in, liable for the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of more than one outside counsel in defending against for all Indemnified Persons (unless more than one outside counsel is reasonably deemed necessary by an Indemnified Person to avoid any conflicts of interest). Notwithstanding anything to the samecontrary contained herein: (y) no settlement or compromise of any liability with respect to which the Company is liable to any Indemnified Person shall be made without the Company's prior written consent, which consent may arise by reason of the loans be granted or commitments hereunder or the interests of the Indemnified Parties withheld in or lien on the Contracts its sole discretion; and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ixz) the failure by a Relevant Party Company shall not be entitled to comply with settle or compromise any termclaim, provision action, suit or covenant contained in proceeding involving any Contract, Required Document, Contract Transfer Document or related agreements (including Indemnified Person without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out prior written consent of such Indemnified PartyPerson, which consent may be granted or withheld in such Indemnified Person's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentssole discretion.
Appears in 1 contract
Sources: Credit Agreement (Efunds Corp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 7.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder(s) of the AgentRevolving Credit Note, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Lender and such holder(s) (collectively, employees and agents of any of the foregoing (each an "Indemnified PartyIndemnities"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the ownership statements contained in any commitment letters delivered by Lender, Lender's agreement to make the Revolving Credit Loans hereunder or funding the use or intended use of the Loans (or any portion thereof) or in respect proceeds of any CollateralRevolving Credit Loan hereunder (collectively, excluding, however, Excluded Taxes and Indemnified Amounts the "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 7.05 shall survive satisfaction and payment of the interest Borrower's Obligations and the termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 10.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify indemnify, pay and hold Agent, each of the AgentBanks and any other holder(s) of the Notes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of them (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by the ownership Borrower or funding any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by Agent or any of the Banks, the Banks' agreements to make the Revolving Credit Loans (hereunder or any portion thereof) the use or in respect intended use of the proceeds of any CollateralRevolving Credit Loan hereunder (collectively, excluding, however, Excluded Taxes and Indemnified Amounts the "indemnified liabilities"); provided that the Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 10.5 shall survive satisfaction and payment of the interest Borrower's Obligations and the termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Shaw Group Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder Whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify indemnify, pay and hold the Agent, the Issuing Bank and each Bank, and the shareholders, officers, directors, employees and agents of the Agent, the LenderIssuing Bank and each Bank (each, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified PartyPerson"), forthwith on demand, harmless from and against any and all damagesclaims, liabilities, losses, claimsdamages, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements costs (all including the reasonable estimate of the foregoing being collectively referred to as "Indemnified Amounts"allocated cost of in-house legal counsel and legal staff) awarded against and including costs of investigation, document production, attendance at deposition or other discovery, that may be incurred by or asserted against any of them Indemnified Person, in each case arising out of or relating to the Transaction Documents in connection with or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateralby reason of, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Documentthe preparation for a defense of, any Manager Report investigation, litigation or proceeding arising out of, related to or in connection contemplated by this Agreement or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) contemplated use of the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to proceeds of the acquisition of Collateral)Loans, or the nonconformity issuance of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear Letter of any LienCredit, whether existing at the time of any Loan or at any time thereafter;
not an Indemnified Person is a party thereto (v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be incollectively, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax"Indemnified Liabilities"), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's Liabilities result from the gross negligence or wilful willful misconduct (as finally determined by a court of competent jurisdictionthe Agent, no longer subject the Issuing Bank or any Bank. If any claim is made, or any action, suit or proceeding is brought, against any Indemnified Person pursuant to appeal this Section, the Indemnified Person shall notify the Borrower of such claim or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required the commencement of such action, suit or proceeding, and the Borrower shall have the option to, and at the request of the Indemnified Person shall, direct and control the defense of such action, suit or proceeding, employing counsel selected by the terms Borrower and reasonably satisfactory to the Indemnified Person, and pay the fees and expenses of such counsel. To the Transaction Documentsextent that the undertaking to indemnify, pay and hold harmless set forth in this Section 3.07 may be unenforceable because it is violative of any law or public policy, the Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Liabilities incurred by any Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payment of expenses pursuant to SECTION 9.6, the Borrower hereby agrees to indemnify each of the Agentindemnify, pay and hold the Lender, XXXXXXXX, and the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents of any affiliates of the foregoing Lender (each an collectively, the "Indemnified PartyIndemnities"), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnities in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the sameany Indemnitee, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateralthis Agreement, any portion thereof other Loan Document or any other interest in agreements executed and delivered by the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation Borrower in connection herewith, the Lender's agreement to make the Revolving Credit hereunder, or the use or intended use of the proceeds of any of the Revolving Loans (the "indemnified liabilities"); PROVIDED, that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required all indemnified liabilities incurred by the terms Indemnities or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this SECTION 9.11 shall survive satisfaction and payment of Borrower's obligations hereunder and termination of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Midway Games Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to Borrower’s agreement to reimburse Agent for Out-of-Pocket Expenses, the but without duplication, Borrower hereby agrees to indemnify each of Agent and the AgentLenders, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees attorneys and agents (each, an “Indemnified Party”) from, and to defend and hold each Indemnified Party harmless against, any and all losses, liabilities, obligations, claims, actions, judgments, suits, damages, penalties, costs, fees, expenses (including reasonable attorney’s fees) of any kind or nature which at any time may be imposed on, incurred by, or asserted against, any Indemnified Party to the extent: (a) resulting from Agent’s exercise of (or failure to exercise) any of Agent’s rights and remedies hereunder, including (i) any sale or transfer of the Collateral, (ii) the preservation, repair, maintenance, preparation for sale or securing of any Collateral, and (iii) the defense of Agent’s interests in the Collateral (including the defense of claims brought by Borrower as a debtor-in-possession or otherwise, any secured or unsecured creditors of Borrower, or any trustee or receiver in bankruptcy); (b) resulting from any environmental pollution, hazardous material or environmental clean-up and Borrower’s off-site disposal practices; (c) arising in connection with any regulatory investigation or proceeding by any regulatory authority or agency having jurisdiction over Borrower; and (d) otherwise relating to or arising out of the transactions contemplated by this Agreement and the other Loan Documents, or any action taken (or failure to act) by any Indemnified Party with respect thereto; provided that an Indemnified Party’s conduct in connection with the any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from matters does not constitute gross negligence or willful misconduct on the part of such Indemnified Party (misconduct, as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting This indemnification shall survive the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out termination of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or payment in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest full and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests satisfaction of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsObligations.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Summit Healthcare REIT, Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the (a) The Borrower hereby agrees to indemnify each agrees, whether or not any of the Agenttransactions hereby contemplated shall be consummated, to assume full liability for, and does hereby indemnify and agree to protect, save and keep harmless the LenderGuarantor, XXXXXXXXits respective successors and assigns, and the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successorsdirectors, transfereesofficers, participants employees, servants and assigns agents thereof (each, an "INDEMNIFIED PARTY"), on an after-tax basis, from and against, and pay or reimburse each such Indemnified Party for, any and all officersClaims in any way relating to or arising out of the Guarantor's or the Parent Guarantor's execution, directors, shareholders, controlling persons, employees delivery and agents performance of any of the foregoing Transaction Documents (each an other than the Purchase Agreement). For purposes hereof, "Indemnified Party")CLAIMS" means liabilities, forthwith on demand, from and against any and all damagesobligations, losses, damages, penalties (including civil or criminal), Taxes (other than Taxes on, based on, measured by or with respect to the net or gross income, capital, net worth, net or gross receipts, franchise or conduct of business (other than sales, use or similar Taxes) of any Indemnified Party (a "BUSINESS TAX") imposed by (X) the United States or (Y) any taxing authority other than the United States by or in which such Indemnified Party is subject to a Business Tax without regard to the transactions contemplated by the Transaction Documents), claims, liabilities and related costs and expensesactions, including reasonable attorneys' fees suits, costs, expenses and disbursements (all including reasonable legal fees and expenses and costs of investigation) of any kind and nature whatsoever, whether or not resulting from third party claims, including without limitation those arising in contract, tort or by strict or absolute liability or otherwise, and whether or not arising out of, or occasioned in whole or in part by, the foregoing being collectively referred to as "negligence of an Indemnified Amounts") awarded against Party, whether active, passive, or imputed, which may be imposed on, incurred by or asserted against any of them Indemnified Party (except for (i) Claims arising out of the gross negligence, fraud or relating willful misconduct of such Indemnified Party; (ii) any Claim to the extent attributable to the breach of any contractual obligation by or the falsity or inaccuracy of any representation of, such Indemnified Party; (iii) any Claim to the extent attributable to the voluntary offer, sale or disposition by or on behalf of such Indemnified Person of its interest in the Transaction Documents or the ownership or funding of the Loans (any part thereof or any portion thereofsecurity therefore other than following the occurrence of an Event of Default; (iv) or in any Claim (other than with respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to Taxes) to the extent resulting from gross negligence that it is an ordinary and usual operating or willful misconduct on the part of overhead expense other than any such expense incurred by such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition an Event of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
Default; (v) any expenses payable by the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents Guarantor under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests Section 16 of the Borrower or any Secured Party to any Contract or other CollateralGuaranty Agreement; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
and (vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting Claim arising from any action dispute or failure to act of proceeding between the Guarantor and the Lender following a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason transfer of the loans or commitments hereunder or the interests Loans pursuant to Section 5 of the Indemnified Parties in or lien on Guaranty). Payments due from the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party Borrower to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an each Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except pursuant to the extent that such liability arising out of this Section 7 shall be made directly to such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsin immediately available funds.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law(i) Subject to the limitations set forth in Section 10.2, AWW (the Borrower hereby "Indemnitor") agrees to that it will indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of and hold harmless Newco and Liquids and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees and agents of any of (the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) from and against any and all losses, damages, lossescosts, and expenses relating to any claims, liabilities actions, suits, proceedings, demands, assessments, and related costs and expensesadjustments, including reasonable attorneys' fees and disbursements expenses of investigation (all of collectively, the foregoing being collectively referred to as "Indemnified AmountsLosses") awarded against or ), reasonably incurred by any of them arising out the aforesaid Indemnitees as a result of or incident to any material breach by AWW of any representation, warranty, covenant, or agreement set forth herein or on any schedule, exhibit, or certificate made or delivered in connection herewith by or on behalf of the Indemnitor (an "Indemnification Event"). With respect to any Indemnification Event relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoingenvironmental matter, the Borrower Indemnified Loss shall indemnify each Indemnified Party for Indemnified Amounts arising out also include any costs and expenses of analysis, testing, remediation, transportation, incineration, treatment, or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement other necessary and the grant appropriate disposition or mitigation of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;hazardous environmental condition.
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining Subject to the acquisition of Collateral)limitations set forth in Section 10.2, or each Guarantor (the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law"Indemnitor") agrees that he will indemnify and hold harmless Newco and Liquids and their respective officers, rule or regulation;
directors, employees, and agents (ivthe "Indemnitees") the failure to vest from and maintain vested in the Collateral Agent a first priority perfected security interest in against all losses, damages, costs, and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party expenses relating to any Contract or other Collateral; or the failure to deliverclaims, or any delay in deliveringactions, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceabilitysuits, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any disputeproceedings, claimdemands, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect theretoassessments, and all costs and expensesadjustments, including the reasonable attorneys' fees and expenses of counsel in defending against investigation (collectively, the same"Indemnified Losses"), which may arise reasonably incurred by reason any of the loans aforesaid Indemnitees as a result of or commitments hereunder incident to any material breach by any of such Guarantors of any representation, warranty, covenant, or agreement set forth herein or on any schedule, exhibit, or certificate made or delivered in connection herewith (an "Indemnification Event").
(b) Subject to the interests limitations set forth in Section 10.2, Newco and Liquids (the "Indemnitors") agree that they will jointly and severally indemnify and hold harmless AWW and the Guarantors and their respective officers, directors, employees, and agents (the "Indemnitees") from and against all Indemnified Losses, reasonably incurred by any of the aforesaid Indemnitees as a result of or incident to any material breach by Newco or Liquids of any representation, warranty, covenant, or agreement set forth herein or on any schedule, exhibit, or certificate made or delivered in connection herewith (an "Indemnification Event"). With respect to any Indemnification Event relating to any environmental matter, the Indemnified Parties in or lien on the Contracts Loss shall also include any costs and other Collateralexpenses of analysis, any portion thereof or any other interest in the Contracts testing, remediation, transportation, incineration, treatment, or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision necessary and appropriate disposition or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out mitigation of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentshazardous environmental condition.
Appears in 1 contract
Sources: Merger Agreement (U S Liquids Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 12.12, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of the Agentindemnify, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or pay and hold Lender and its Affiliate), each of their respective Affiliates, successors, transferees, participants successors and assigns and all the officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Lender and its successors and assigns (collectively the foregoing (each an "Indemnified Party"“Indemnitees”), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the same, which may arise by reason any Indemnitee in any manner relating to or arising out of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loan Documents or any other interest agreements executed and delivered by Borrower, or any guarantor of the Liabilities in connection herewith (including, but not limited to, the Contracts or other Collateral;
(ix) Guarantors), the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment or proposal letter delivered by Lender, Required Document, Contract Transfer Document Lender’s agreement to make the Loans or related agreements the use or intended use of the proceeds of any of the Loans hereunder (including without limitation in connection collectively the “Indemnified Liabilities”); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section shall survive satisfaction and payment of the Liabilities and termination of this Loan Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Better Choice Co Inc.)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payments pursuant to Section 9.3, the Borrower hereby DEVELOPER agrees to indemnify each indemnify, pay, and hold the Company and any holder of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents of any Affiliates of the foregoing Company and any such holder (each an collectively, the "Indemnified PartyIndemnitees"), forthwith on demand, harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and costs, expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative, or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against any Indemnity, in any manner relating to or arising out of this Agreement, the sameNote, which may arise by reason of the loans or commitments hereunder or Unit Pledge Agreement, the interests of Subsidiary Security Agreement, the Indemnified Parties in or lien on Security Instruments and the Contracts and other Collateral, any portion thereof exhibits or any other interest in the Contracts agreements or other Collateral;
(ix) the failure document executed and delivered by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation DEVELOPER in connection therewith, DEVELOPER's use and operation of the Stores, including any damage to public or worker health and safety or the environment, the Company's agreement to make the Loan hereunder, or the use or intended use of the proceeds of the Loan (the "indemnified liabilities"); provided that DEVELOPER shall have no obligation to an Indemnity hereunder with respect to indemnified liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnity. To the extent that such liability arising out the undertaking to indemnify, pay, and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, DEVELOPER shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required all indemnified liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 9.11 shall survive satisfaction and payment of DEVELOPER's obligations hereunder and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawPurchaser shall be liable to Vendor for and shall, the Borrower hereby agrees to iri addition, indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, Vendor from and against any and against, all damageslosses, lossescosts, claims, damages, expenses and liabilities and related costs and expenseswhatsoever suffered, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against sustained, paid or incurred by any of them arising Vendor, which arise out of any matter or relating thing accruing, attributable to, connected with or occurring or arising from and after the Adjustment Date and which relates to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or Purchased Interest, provided however, that Purchaser shall not be liable to nor be required to indemnify Vendor in respect of any Collaterallosses, excludingcosts, howeverclaims, Excluded Taxes damages, expenses and Indemnified Amounts to the extent resulting from gross negligence liabilities suffered, sustained, paid or willful misconduct on the part of such Indemnified Party (as finally determined incurred by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising Vendor which arise out of acts or relating to:
(i) omissions of Vendor, provided the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws omission was with respect to the interests an obligation of the Borrower Vendor that was not assumed by the Purchaser as otherwise contemplated in this Agreement. Vendor shall be liable to Purchaser for and shall, in addition, indemnify Purchaser from and against, all losses, costs, claims, damages, expenses and liabilities whatsoever suffered, sustained, paid or incurred by Purchaser, which arise out of any Secured Party to any Contract matter or other Collateral; thing accruing, attributable to, connected with or occurring or arising from and after the failure to deliver, or any delay in delivering, any Required Document Adjustment Date and which relates to the Collateral Agent (as applicable); or any dispute relating Purchased Interest, provided however, that Vendor shall not be liable to the enforceability, priority or validity of the interest nor be required to indemnify Purchaser in respect of any Secured Party in any Collateral (including without limitation any such dispute based on preference losses, costs, claims, damages, expenses and liabilities suffered, sustained, paid or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, incurred by Purchaser which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim acts or cause omissions of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsPurchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alberta Star Development Corp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 11.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns pay Indemnitees and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, hold Indemnitees harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of this Agreement, any of the loans other Transaction Documents or commitments any other agreement, document or instrument executed and delivered by Borrower or any other Obligor in connection herewith or therewith, the statements contained in any commitment letters delivered by the Agent or any of the Lenders, the agreement of any of the Lenders to make the Loans hereunder, the agreement of Lenders to issue the Letters of Credit hereunder or the interests use or intended use of the proceeds of any Loan hereunder (collectively, the "Indemnified Parties in Liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the gross negligence or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to that Indemnitee. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. The provisions of the undertakings and indemnification set out in this Section 11.5 shall survive satisfaction and payment of the Obligations and the termination of this Agreement. No provision contained in this Section 11.5 shall affect any rights Borrower may have against any Lender which defaults under this Agreement or is intended to indemnify any such liability arising out of Agent or Lender which defaults under this Agreement (but only such Agent or Lender that defaults under this Agreement) for any such Indemnified PartyLiabilities arising from such defaulting Lender's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsaction.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses ----------------- pursuant to Section 10.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower Borrowers hereby agrees agree to indemnify indemnify, pay and hold Agent, each of the AgentLenders and any other holder(s) of the Notes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of them (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnities shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnities, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrowers in connection herewith or therewith, the ownership statements contained in any commitment letters delivered by Agent or funding any of the Lenders, the Lender's agreements to make the Loans (hereunder the Agent's agreement to issue Letters of Credit, or any portion thereof) the use or in respect intended use of the proceeds of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts Loan or Letter of Credit hereunder; provided that Borrowers shall -------- have no obligation to an Indemnitee hereunder with respect to indemnified liabilities (a) arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction, no longer subject to appeal jurisdiction or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts (b) arising out of dispute between the Agent and one or relating to:
more of the Lenders and/or a dispute among one or more of the Lenders (i) collectively, the obligation "indemnified liabilities"). To the extent that the undertaking to repay indemnify, pay and hold harmless set forth in the Lender pursuant preceding sentence may be unenforceable because it is violative of any law or public policy, Borrowers shall contribute the maximum portion that they are permitted to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnities or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 10.5 shall survive satisfaction and payment of the interest Obligations and the termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Affected Parties, each of their respective Affiliates, and all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each each, an "“Indemnified Party"”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and reasonable related out-of-pocket costs and expenses, including reasonable attorneys' ’ fees and disbursements (all of the foregoing being collectively referred to as "“Indemnified Amounts"”) awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership transactions contemplated thereby (including the issuance or funding of Modification of, the Loans (fronting for, or any portion thereof) drawing under, any Letter of Credit), the LC Collateral Account, the Obligations or in respect of any the Collateral, excluding, however, Excluded Taxes and : (i) Indemnified Amounts to the extent resulting determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party Party, and (ii) recourse (except as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party otherwise specifically provided in this Agreement) for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or the related Obligor’s refusal to pay; provided, however, that prior to the Intercreditor Agreement;
(ii) the breach occurrence of any representation or warranty made by a Relevant Party (or any an Event of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be inDefault, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party Indemnified Parties shall only be entitled to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including seek indemnity for the reasonable fees and expenses disbursements of a single law firm as special counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the to all such Indemnified Parties in or lien on the Contracts and other Collateral(and, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documents.if
Appears in 1 contract
Sources: Credit and Security Agreement (Quest Diagnostics Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 9.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of any of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of Lender and such holder(s) (collectively called the foregoing (each an "Indemnified Partyindemnities"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such indemnities shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnities, in any of them manner relating to or arising out of this Agreement or relating other agreements executed and delivered by Borrower or any other Obligor in connection herewith, the statements contained in any commitment letters delivered by Lender, Lender's agreement to make the Transaction Documents Loan hereunder or the ownership use or funding intended use of the Loans proceeds of the Loan hereunder (or any portion thereof) or in the "indemnified liabilities"); that Borrower shall have no obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnities or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the this Section 9.05 shall survive satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP UnitBorrower's or any related documents' not being legal, valid Obligations and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 8.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of Note, and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of Lender and such holder(s) (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement or relating other agreements executed and delivered by Borrower, or any other Obligor in connection with the Loans (but not to any other transaction entered into by and between Borrower or any other Obligor on one hand and Lender on the Transaction Documents other hand), the statements contained in any commitment letters delivered by Lender, Lender’s agreement to make the Loans hereunder or the ownership use or funding intended use of the proceeds of the Loans hereunder (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and the “Indemnified Amounts Liabilities”); provided that Borrower shall have no obligation to the extent resulting Indemnitees with respect to Indemnified Liabilities arising from gross the negligence or willful misconduct on of the part of such Indemnified Party (Indemnitees as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable Law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 8.04 shall survive satisfaction and payment of the interest Obligations and termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Peoples Bancorp Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 11.2(a), whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify each pay and hold the Bank, its affiliates and any holder of the AgentNote, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees successors and agents of any of assigns (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees (or any of them), which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment letters delivered by the Bank, Required Documentthe Bank’s agreement to make the Loans, Contract Transfer Document or related agreements the use or intended use of the proceeds of any of the Loans (including without limitation in connection the “Indemnified Liabilities”); provided, however, that the Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of the Transaction Documentsthem.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses and ------------------ attorneys' fees, if applicable, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each of indemnify, pay and hold DFS and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of DFS (collectively called the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against against, any and all damagesother ----------- liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of statements contained in any commitment letters delivered by DFS, DFS' agreement to make the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loans or any other interest in payment hereunder, or the Contracts use or other Collateral;
intended use of the proceeds of any of the Loans hereunder (ix) the failure by a Relevant Party "Indemnified Liabilities"); provided, however, that Borrower ------------------------ -------- ------- shall have no obligation to comply an Indemnitee hereunder with any term, provision respect to Indemnified Liabilities arising from the gross negligence or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 12.1 shall survive satisfaction and ------------ payment of the Obligations and termination of this Agreement.
Appears in 1 contract
Sources: Business Credit and Security Agreement (Pomeroy Computer Resources Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 9.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of any of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of Lender and such holder(s) (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement, the other Transaction Documents, or relating other agreements executed and delivered by Borrower, Royal Palm, or any other Obligor in connection herewith, the statements contained in any commitment letters delivered by Lender, Lender’s agreement to make the Loan hereunder or the use or intended use of the proceeds of the Loan hereunder (the “Indemnified Liabilities”): that Borrower shall have no obligation to the Transaction Documents or Indemnitees with respect to Indemnified Liabilities arising from the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on of the part of such Indemnified Party (Indemnitees as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 8.05 shall survive satisfaction and payment of the interest Obligations and termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable To the greatest extend permitted by law, the Borrower hereby agrees to VENDOR shall defend, indemnify each of the Agentand hold harmless Owner and contractor, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or including its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholderspartners, controlling personsjoint-ventures, employees agents, employees, affiliates, parents, subsidiaries and agents representatives, and each of any of the foregoing (each an "Indemnified Party"), forthwith on demand, them from and against any and all damages, losses, claims, demands, causes of action, penalties, assessments, fines, losses or liabilities and related costs in law or equity, and expenses, including reasonable but not limited to, attorneys' ’ fees and disbursements costs (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them “Claims”), arising out of of, or relating in connection with, VENDOR’S obligations under this Agreement, and which Claims occur both while this Agreement is in effect and after this Agreement has been terminated. Such indemnity provisions apply to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect fullest extent permitted by law, regardless of any Collateralpassively negligent act or omission of Owner and Contractor, excludingor their agents or employees, VENDOR, however, Excluded Taxes shall not be obligated to indemnify Owner and Indemnified Amounts to Contractor from and against Claims arising from the extent resulting from gross active negligence, sole negligence or willful misconduct of Owner and Contractor, or their agents, employees or independent contractors who are directly responsible to Owner and Contractor , or for defects in design furnished by such persons, or for Claims that do not arise out of the work of VENDOR. The indemnity provisions set forth in this section shall not be limited by insurance requirements or by any other such provision in this Agreement. All work covered by this Agreement done at the site or in preparing or delivering materials or equipment to the site shall be at the sole risk of VENDOR until the completed work is accepted by Owner and Contractor. LIENS: VENDOR shall at all times indemnify and save CONTRATOR and OWNER harmless against all liability for claims and liens by third parties for labor performed or materials used or furnished to be used on the part job, including any costs and expense for attorney’s fees and all incidental or consequential damages resulting to CONTRACTOR or OWNER from such claims or liens. ENTIRE AGREEMENT: ▇▇▇▇▇▇ agrees to be bound to CONTRACTOR to the same extent the CONTRACTOR is bound to OWNER. It is agreed that this Purchase Agreement represents the entire Agreement between CONTRACTOR and VENDOR. TIME: Time is of such Indemnified Party (as finally determined by a court of competent jurisdictionthe essence, no longer and it shall be VENDOR’S obligations to conform to CONTRACTOR’S progress schedule, subject to appeal or review)CONTRACTOR’S modification. Without limiting the foregoing, the Borrower VENDOR shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement prepare and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance obtain approval as required by this Agreement for all shop drawings, details and samples and shall coordinate the terms work covered by this Agreement with that of all other contractors, subcontractors, and of the Transaction DocumentsCONTRACTOR in a manner that will facilitate the efficient completion of the entire work undertaken by CONTRACTOR in his contract with the OWNER.
Appears in 1 contract
Sources: Purchase Agreement
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payment of expenses pursuant to Section 8.2, Company and the Borrower Guarantors, jointly and severally, hereby agrees agree to indemnify indemnify, pay and hold the Collateral Agent, and each of the AgentCreditors and any holder(s) of the Loans or Private Notes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents of any affiliates of the foregoing Collateral Agent, each of the Creditors and such holder(s) (each an collectively, the "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the Transaction other Credit Documents or any other agreement, document or instrument executed and delivered by Company in connection herewith or therewith, (collectively, the ownership or funding of "indemnified liabilities"); provided that Company shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final nonappealable order. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement Company and the grant of a security interest Guarantors shall contribute the maximum portion that they are permitted to pay and satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or undertakings and indemnification set out in this Section 8.3 shall survive the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Company's Obligations and Guarantor Obligations arising from the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid Credit Documents and binding obligations the termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Collateral Agency and Intercreditor Agreement (Huntco Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 8.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of Note, and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents affiliates of any of Lender and such holder(s) (collectively called the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such indemnities in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement or relating other agreements executed and delivered by Borrower, or any other Obligor in connection with the Loan (but not to any other transaction entered into by and between Borrower or any other Obligor on one hand and Lender on the other hand), the statements contained in any commitment letters delivered by Lender, Lender’s agreement to make the Loan hereunder or the use or intended use of the proceeds of the Loan hereunder (the “Indemnified Liabilities”); that Borrower shall have no obligation to the Transaction Documents or Indemnitees with respect to Indemnified Liabilities arising from the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on of the part of such Indemnified Party (Indemnitees as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 9.05 shall survive satisfaction and payment of the interest Obligations and termination of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Term Loan Agreement (Enterprise Financial Services Corp)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 11.3, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each indemnify, pay and hold Lender and any holder of any Note, and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Lender and such holders (collectively, the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, harmless from and against any and all damagesliabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto) that may be imposed on, incurred by, or asserted against the sameany Indemnitee, which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateralthis Agreement, any portion thereof Related Agreement or any other interest agreements executed and delivered by Borrower or any other Obligor in connection herewith, the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment letter delivered by Lender, Required DocumentLender's agreement to make the Loans or to issue Letters of Credit hereunder, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing use or intended use of Contracts and Related Property);
(x) the commingling proceeds of collections on or related to any of the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its Loans or any other Indemnified Party's interests in proceeds of Letters of Credit hereunder (the Contracts and other Collateral, except "indemnified liabilities"); provided that Borrower shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the gross negligence or willful misconduct of such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay under applicable law to the payment and satisfaction of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required all indemnified liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 9.2 shall survive satisfaction and payment of the Liabilities and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawThe Borrower will indemnify the Administrative Agent and each Lender, the Borrower hereby agrees to indemnify and each of the AgentAdministrative Agent and the Lenders' respective directors, officers, employees, agents, counsel and accountants and each Person, if any, who controls the Lender, XXXXXXXX, Administrative Agent or any Lender (the Collateral Administrative Agent (if other than the Borrower or its Affiliate), and each Lender and each of their respective Affiliatesdirectors, successors, transferees, participants and assigns and all officers, directorsemployees, shareholdersagents, controlling persons, employees counsel and agents of any of the foregoing (each accountants and control Persons is referred to as an "Indemnified PartyIndemnitee"), forthwith on demand, ) and hold each of them harmless from and against any and all claims, damages, losses, claims, liabilities and related costs and expenses, reasonable expenses (including reasonable attorneys' fees and disbursements (of counsel with whom any Indemnitee may consult in connection therewith and all expenses of litigation or preparation therefor) which any Indemnitee may incur or which may be asserted against any Indemnitee in connection with any litigation or investigation involving any of the foregoing being collectively referred to as "Indemnified Amounts") awarded Principal Companies or any of their Subsidiaries, or any officer, director, employee, agent, counsel or accountant thereof (including the Administrative Agent's or Lenders' compliance with or contest of any subpoena or other process issued against it in any proceeding involving any of the Principal Companies or incurred any of their Subsidiaries), whether or not such Indemnitees are parties thereto, or any penalties or other matters involving the transactions contemplated hereby, other than litigation commenced by any of them arising out the Principal Companies against the Lenders or the Administrative Agent which seeks enforcement of any of the rights of any of the Principal Companies hereunder or relating under any other Credit Document and is finally determined adversely to the Transaction Documents Lenders or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes Administrative Agent and Indemnified Amounts except to the extent resulting such claims, damages, liabilities and expenses result from the Administrative Agent's or a ▇▇▇▇▇▇'s gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsmisconduct.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law(i) Borrower shall at its sole cost and expense, protect, defend, indemnify and hold harmless the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, Parties from and against any and all damages, losses, claims, suits, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateralstrict liabilities), administrative and judicial actions and proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, expenses, judgments, awards, and litigation costs, of whatever kind or the nonconformity of any Contract Transfer Document nature and whether or other Collateral not incurred in connection with any such applicable lawjudicial or administrative proceedings (including, rule but not limited to, reasonable attorneys' fees and other reasonable costs of defense) (the "LOSSES") imposed upon or regulation;
incurred by or asserted against any Indemnified Parties (ivother than those arising from a state of facts that first came into existence after the Lenders acquired title to any REO Property of the Borrower through foreclosure or a deed in lieu thereof or forecloses its Lien upon the Mortgage Loans or from the Lenders' bad faith, willful misconduct or gross negligence), and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) ownership of the failure to vest and maintain vested in Global Note, the Collateral Agent a first priority perfected security interest in and lien on REO Mortgages, any of the Collateral, free and clear of any Lien, whether existing at the time of any other Loan or at any time thereafter;
(v) the failure to file, Documents or any delay in filing any financing statements, assignment REO Property or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests Mortgage Loan of the Borrower or any Secured Party to interest therein or receipt of any Contract Rents, or other Collateral; Borrower's acquisition of any REO Property or Mortgage Loan or any claim made by any prior owner of such REO Property or the failure related Mortgaged Property relating to deliversuch acquisition or any sums that may be payable to such prior owner in connection therewith; (b) any amendment to, or any delay in deliveringrestructuring of, any Required Document to the Collateral Agent (as applicable); Indebtedness, the Global Note or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral other Loan Documents; (including without limitation any such dispute based on preference or similar laws);
(vic) any disputeand all lawful action that may be taken by the Lenders in connection with the enforcement of the provisions of this Agreement, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract Global Note or any CP Unit inof the other Loan Documents, whether or not suit is filed in connection with same, or purporting to be in, in connection with the CP Unit Pool (including, without limitation, a defense based on such CP Unit's Borrower or any related documents' not being legal, valid and binding obligations Affiliate of an Obligor or the Borrower becoming a party to a Contract Transfer Documentvoluntary or involuntary federal or state bankruptcy, enforceable against it insolvency or similar proceeding; (d) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about any REO Property or Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (e) any use, nonuse or condition in, on or about any REO Property or Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (f) any failure on the part of the Borrower to perform or be in accordance compliance with its termsany of the terms of this Agreement or any of the other Loan Documents; (g) performance of any labor or services or the furnishing of any materials or other property in respect of any REO Property or Mortgaged Property or any part thereof; (h) the failure of any person to file timely with the Internal Revenue Service an accurate Form ▇▇▇▇-▇, or resulting ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from any action or failure to act of a Relevant Party;
Real Estate, Broker and Barter Exchange Transactions, which may be required in connection with this Agreement; (viii) any failure of a Relevant any REO Property or Mortgaged Property to be in compliance with any Legal Requirement; (j) the enforcement by any Indemnified Party of the provisions of this SECTION 5.1(J) or (k) any and all claims and demands whatsoever which may be asserted against the Lenders by reason of any alleged obligations or undertakings on their part to perform its duties or obligations under discharge any of the Transaction Documents;terms, covenants, or agreements contained in any Lease. Any amounts payable to an Indemnified Party by reason of the application of this SECTION 5.1(J)(I) shall become due and payable ten (10) days after demand and shall bear interest at the Default Rate from the tenth (10th) day after demand until paid.
(viiiii) The Borrower shall, at its sole cost and expense, protect, defend, indemnify and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of this Agreement, the Global Note or governmental fee or charge any of the other Loan Documents (other than taxes imposed on the income of the Lenders).
(iii) The Borrower shall, at its sole cost and expense, protect, defend, indemnify and hold harmless the Indemnified Parties from and against any and all Losses that the Indemnified Parties may incur, directly or indirectly, as a result of a default under the Borrower's covenants with respect to ERISA and employee benefits plans contained herein.
(iv) Promptly after receipt by an Excluded TaxIndemnified Party under this SECTION 5.1(j) or SECTION 5.1(i), all of notice of the making of any claim or the commencement of any action, such Indemnified Party shall, if a claim in respect thereof is to be made by such Indemnified Party against the Borrower under this SECTION 5.1(j) or SECTION 5.1(i), notify the Borrower in writing, but the omission so to notify the Borrower will not relieve the Borrower from any liability which it may have to any Indemnified Party under this SECTION 5.1(j) or SECTION 5.1(i) , or otherwise unless and to the extent that neither Borrower otherwise possessed knowledge of such claim or action and such failure resulted in the forfeiture by the Borrower of substantial rights and defenses. In case any such claim is made or action is brought against any Indemnified Party and such Indemnified Party seeks or intends to seek indemnity from the Borrower, the Borrower will be entitled to participate in, and, to the extent that they may wish, to assume the defense thereof with a single counsel reasonably satisfactory to the Lenders; and, upon receipt of notice from the Borrower to such Indemnified Party of their election so to assume the defense of such claim or action and only upon approval by the Indemnified Party of such counsel, the Borrower will not be liable to such Indemnified Party under this SECTION 5.1(j) or SECTION 5.1(i), for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof. Notwithstanding the preceding sentence, each Indemnified Party will be entitled to employ counsel separate from such counsel for the Borrower and from any other party in such action if such Indemnified Party reasonably determines that a conflict of interest and penalties thereon or with respect theretoexists which makes representation by counsel chosen by the Borrower not advisable. In such event, and all costs and expenses, including the reasonable fees and expenses disbursements of such separate counsel in defending against will be paid by the sameBorrower. The Borrower shall not, which may arise by reason without the prior written consent of the loans an Indemnified Party, settle or commitments hereunder compromise or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related consent to the Contracts and other Collateral at entry of any time judgment with other funds;
respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (xi) any liability arising out of a whether or not such Indemnified Party is an actual or potential party to such claim or cause action) unless such settlement, compromise or consent includes an unconditional release of action asserted by any person against an each Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such from all liability arising out of such claim, action, suit or proceeding. Each Indemnified Party's gross negligence Party shall not enter into a settlement of or wilful misconduct (consent to the entry of any judgment with respect to or otherwise compromise any action, claim, suit or proceeding as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant which an Indemnified Party would be entitled to maintain insurance as required by indemnification hereunder without the terms written consent of the Transaction DocumentsBorrower which shall not be unreasonably withheld or delayed. The provisions of and undertakings and indemnification set forth in this SECTION 5.1(J) shall survive the satisfaction and payment of the Indebtedness and termination of this Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses and attorneys' fees, if applicable, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify indemnify, pay and hold Agent and each of Lender and the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees and agents affiliates of any of Agent and each Lender and such holders (collectively called the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees, which may arise by reason in any manner relating to or arising out of the loans Loan Documents, the statements contained in any commitment letters delivered by Agent or commitments hereunder or any Lender, each Lender's agreement to make the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loans or any other interest in payment hereunder, or the Contracts use or other Collateral;
intended use of the proceeds of any of the Loans hereunder (ix) the failure by a Relevant Party "Indemnified Liabilities"); Provided, however, that Borrower shall have no obligation to comply an Indemnitee hereunder with any term, provision respect to Indemnified Liabilities arising from the gross negligence or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of them. The provisions of the Transaction Documentsundertakings and indemnification set out in this Section 12.1 shall survive satisfaction and payment of the Obligations and termination of this Agreement.
Appears in 1 contract
Sources: Business Credit and Security Agreement (Elek Tek Inc)
General Indemnity. Without limiting In addition to any liability of the Borrower to the Lender under any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoingprovision hereof, the Borrower shall indemnify the Lender and its Affiliates, directors, officers, agents and employees (collectively, in this Section the “Indemnified Parties”) and hold each Indemnified Party for Indemnified Amounts arising out of harmless against any losses, claims, costs, damages or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation liabilities (including, without limitation, any securities law, rule expense or regulation pertaining cost incurred in the liquidation and re-deployment of funds acquired to fund or maintain any portion of an Advance and reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the acquisition same as a result of Collateral), or in connection with the Loan or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable lawLoan Documents, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, as a defense based result of or in connection with:
(a) any cost or expense incurred by reason of the liquidation or re-deployment in whole or in part of deposits or other funds required by the Lender to fund or maintain any Advance as a result of the Borrower’s failure to complete a Drawdown or to make any payment, repayment or prepayment on such CP Unit's the date required hereunder or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against specified by it in accordance with its terms, or resulting from any action or failure to act of a Relevant Partynotice given hereunder;
(viib) the Borrower’s failure to pay any other amount, including without limitation any interest or fees, due hereunder on its due date after the expiration of any applicable grace or notice periods (subject, however, to the interest obligations of the Borrower hereunder for overdue amounts);
(c) the Borrower’s failure to give any notice required to be given by it to the Lender or the Lender hereunder;
(d) the failure of the Borrower to make any other payment due hereunder;
(e) any inaccuracy or incompleteness of the Borrower’s representations and warranties contained in Section 5.2;
(f) any failure of a Relevant Party the Borrower to perform observe or fulfil its duties or obligations covenants under the Transaction Documents;Article 6 or
(viiig) the occurrence of any tax Default or governmental fee Event of Default; provided that this Section shall not apply to any losses, claims, costs, damages or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may liabilities that arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction DocumentsIndemnified Party claiming indemnity hereunder. The provisions of this Section shall survive repayment of the Loan Indebtedness.
Appears in 1 contract
Sources: Credit Agreement (Viggle Inc.)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable (a) To the maximum extent permitted by law, the Borrower hereby ▇▇▇▇▇▇ agrees to indemnify each of the Agentindemnify, the Lenderprotect, XXXXXXXXdefend and hold Landlord and Landlord's Governing Board members, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of (collectively, the foregoing (each an "Indemnified Party"), forthwith on demand, “Landlord Parties”) harmless from and against any and all claims, damages, lossesliabilities, claimsjudgments, liabilities and related costs and expenses, (including reasonable attorneys' fees attorney's fees), liens, expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against penalties, whether now known or incurred by any of them unknown, fixed or contingent, liquidated or unliquidated, arising out of or relating in any way connected (collectively, “Claims”) to (i) Tenant's and ▇▇▇▇▇▇'s officers, directors, agents, servants, employees, students, visitors, licensees, concessionaires and invitees use and occupancy of the Premises or (ii) any accident or other occurrence, causing or alleged to have caused injury or death to persons or damage to property by reason of condition, maintenance or construction of the Premises or any improvement (whether constructed by Landlord or Tenant) to the Transaction Documents or the ownership or funding of the Loans (or Premises. The foregoing shall not apply to any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent Claims resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:from
(i) the obligation negligence or willful misconduct of any of the Landlord Parties, (ii) any condition, maintenance or construction of the Premises or any improvement to repay the Lender which Landlord is responsible pursuant to this Agreement Lease, or (iii) a Landlord Event.
(b) To the maximum extent permitted by law, ▇▇▇▇▇▇▇▇ agrees to indemnify, protect, defend and hold Tenant, ▇▇▇▇▇▇'s governing board members, officers, employees and agents (collectively, the grant “Tenant Parties”) harmless from and against any and all claims, damages, liabilities, judgments, costs (including reasonable attorney's fees), liens, expenses and penalties, whether now known or unknown, fixed or contingent, liquidated or unliquidated, arising out of a security interest or in any way connected (collectively, “Claims”) to (i) the Collateral Agent pursuant to negligence or willful misconduct of any of the Intercreditor Agreement;
Landlord Parties, (ii) any condition, maintenance or construction of the breach of any representation or warranty made by a Relevant Party (Premises or any of its officers) under improvement for which Landlord is responsible pursuant to this Lease, or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) a Landlord Event. The foregoing shall not apply to any Claims resulting from (i) the failure by a Relevant Party to comply with any applicable law, rule negligence or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity willful misconduct of any Contract Transfer Document of the Tenant Parties, (ii) any condition, maintenance or other Collateral with construction of the Premises or any such applicable law, rule or regulation;improvement to which Tenant is responsible pursuant to this Lease.
(ivc) This Section 13 shall survive the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear expiration or termination of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Lease.
Appears in 1 contract
Sources: Lease Agreement
General Indemnity. Without limiting (a) The Company shall indemnify Indemnitee to the fullest extent permitted by law in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor). Pursuant to this Section 2, Indemnitee shall be indemnified against all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or with respect to such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any claim, issue or matter therein, provided that, notwithstanding any other rights provision hereof, nothing in this Agreement shall exempt an Indemnitee from or indemnify him against any liability which by virtue of any such Person may have hereunder rule of law would otherwise attach to him in respect to his fraud or under applicable lawdishonesty in relation to the Company. Indemnitee shall not enter into any settlement in connection with a Proceeding without ten (10) days prior notice to the Company.
(b) For purposes of Section 2(a), the Borrower hereby agrees to indemnify each meaning of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating phrase “to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateralfullest extent permitted by law” shall include, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating but not be limited to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant fullest extent permitted by the provision of the Companies Act that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the Intercreditor Agreement;Companies Act or such provision thereof; and
(ii) to the breach fullest extent authorized or permitted by any amendments to or replacements of any representation or warranty made by the Companies Act adopted after the date of this Agreement that increase the extent to which a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or corporation may indemnify its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsdirectors.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn consideration of the Commitment, the Borrower hereby further agrees to indemnify and defend Bank and its directors, officers, agents and employees (the “Indemnified Parties”) from, and hold each of the Agentthem harmless against, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damageslosses, lossesliabilities, claims, liabilities damages, deficiencies, interest, judgments, costs or expenses incurred by them or any of them, including, but without limitation, amounts paid in settlement, court costs, and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel incurred in connection with any investigation, litigation or incurred by any of them other proceeding, arising out of or relating by reason of any investigation, litigation or other proceeding brought or threatened, arising out of or by reason of their execution of any Loan Document and the transaction contemplated thereby, including, but not limited to, any use effected or proposed to the Transaction Documents or the ownership or funding be effected by Borrower of the Loans (proceeds of the Loan, but excluding any such losses, liabilities, claims, damages or any portion thereof) or in respect expenses incurred by reason of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on of the part relevant Indemnified Party. Any Indemnified Party seeking indemnification under this Section will notify Borrower of any event requiring indemnification within thirty (30) Business Days following such Indemnified Party’s receipt of notice of commencement of any action or proceeding, or such Indemnified Party’s obtaining knowledge of the occurrence of any other event, giving rise to a claim for indemnification hereunder. Borrower will be entitled (but not obligated) to assume the defense or settlement of any such action or proceeding or to participate in any negotiations to settle or otherwise resolve any claim using counsel of its choice; provided that:
(i) Borrower notifies such Indemnified Party in writing that Borrower will indemnify such Indemnified Party from and against the relevant claim;
(ii) such counsel is reasonably satisfactory to such Indemnified Party;
(iii) such claim involves only money damages and does not seek an injunction or other equitable relief;
(iv) if such Indemnified Party is the Bank, settlement of, or an adverse judgment with respect to, such claim is not, in the good faith judgment of such Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of such Indemnified Party;
(v) Borrower conducts the defense of such claim actively and diligently;
(vi) no conflict of interest has arisen which would prevent counsel for Borrower from also representing such Indemnified Party because the defendants in any action include both such Indemnified Party and Borrower; and
(vii) Borrower will not consent to the entry of any judgment or enter into any settlement with respect to such claim without the prior written consent of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject not to appeal or reviewbe withheld unreasonably). Without limiting So long as Borrower has assumed the defense of such claim and is conducting such defense in accordance with the foregoing, such Indemnified Party: (x) may retain separate co-counsel at its sole cost and expense and participate in the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out defense of or relating to:
such claim; and (iy) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest will not consent to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach entry of any representation judgment or warranty made by a Relevant Party (or enter into any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws settlement with respect to such claim without the interests prior written consent of Borrower with respect to such claim (not to be withheld unreasonably). If Borrower fails to assume such defense or, after doing so, Borrower fails to satisfy any of the Borrower above conditions to Borrower’s defense, such Indemnified Party (and its counsel) may defend against, and consent to the entry of any judgment or enter into any Secured settlement with respect to, such claim in any manner it may reasonably deem appropriate (and such Indemnified Party to any Contract or other Collateral; or the failure to deliverneed not consult with, or obtain any delay consent from, Borrower in deliveringconnection therewith) and Borrower will reimburse such Indemnified Party promptly and periodically for the costs of defending against such claim (including reasonable attorneys’ fees and expenses) and Borrower will remain responsible for any loss which such Indemnified Party may suffer resulting from, any Required Document arising out of, relating to, in the nature of, or caused by such claim to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid fullest extent provided for and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Construction Loan Agreement (Global Growth Trust, Inc.)
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 7.03, whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby agrees to indemnify each defend, indemnify, pay and hold Lender any holders of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Lender and such holders (collectively, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related disbursements, costs and expensesexpenses of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto, provided that the foregoing being collectively referred Indemnitees shall share counsel to as "Indemnified Amounts") awarded against or defend their interests to the extent legally practicable), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or any other agreement, document or instrument executed and delivered by Borrower in connection herewith or therewith, the ownership statements contained in any commitment letters delivered by Lender, the agreement of Lender to make the Loans under this Agreement or funding the use or intended use of the Loans (or any portion thereof) or in respect proceeds of any CollateralLoan under this Agreement (collectively, excluding, however, Excluded Taxes the “Indemnified Liabilities”); provided that (a) the Indemnitees shall promptly (and in any event within fifteen (15) Business Days after receiving notice of the existence of any potential Indemnified Amounts Liabilities) notify Borrower in writing of the existence of any potential Indemnified Liabilities; (b) Borrower shall have the right to assume and thereafter conduct the defense of any Indemnified Liabilities with counsel of its choice reasonably satisfactory to the extent Indemnitees, provided that Borrower will not consent to the entry of any judgment or enter into any settlement with respect to any Indemnified Liabilities without the prior written consent of the Indemnitees (not to be unreasonably withheld) unless the judgment or proposed settlement fully releases such Indemnitees and involves only the payment of money damages that are covered in full by this indemnity and does not impose an injunction or other equitable relief upon any Indemnitee and is subject to confidentiality provisions acceptable to the Indemnitees (which approval will not be unreasonably withheld by the Indemnitees); and (c) Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final, no longer subject nonappealable order. To the extent that the undertaking to appeal indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all Indemnified Liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the this Section 7.04 shall survive satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Borrower’s Obligations and the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law(i) Claims Indemnified as between Lessor and Lessee. Subject to the exclusions stated in Section 16(b) below, the Borrower hereby agrees to indemnify each of the AgentLessee assumes liability for, the Lenderand shall indemnify, XXXXXXXXprotect, the Collateral Agent (if other than the Borrower or save and keep harmless Lessor and its Affiliate)agents, each of their respective Affiliatesservants, successors, transferees, participants successors and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, “Indemnitee”) from and against any and all damagesliabilities, obligations, losses, damages, penalties, claims, liabilities and related actions, suits, costs and expenses, including reasonable attorneys' fees legal expense, of whatsoever kind and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or nature, imposed on, incurred by or asserted against any of them Indemnitee, in any way relating to or arising out of or relating to the Transaction Documents this Lease or the ownership enforcement hereof, or funding the manufacture, ordering, purchase, acceptance, rejection, ownership, possession, use, selection, delivery, lease, operation, condition, sale, return or other disposition of the Loans (Aircraft or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation thereof (including, without limitation, latent or other defects, whether or not discoverable by Lessee or any securities lawother person, rule any claim in tort for strict liability and any claim for patent, trademark or regulation pertaining copyright infringement); provided, however, that Lessee shall not be required to indemnify any lndemnitee for loss or liability arising from acts or events which occur after the acquisition Aircraft has been returned to Lessor in accordance with this Lease, or for loss or liability resulting solely from the willful misconduct or gross negligence or sole negligence of Collateral)such Indemnitee. The provisions of this Section shall survive the expiration or early termination of this Lease.
(ii) Claims Indemnified as between Lessor, Leesee and Optional Payor. Lessee and Lessor assume liability for, and shall indemnify, protect, save and keep harmless Optional Payor and his agents, servants, executors, administrators, personal representatives, heirs, successors and assigns (an “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses, including reasonable legal expenses, of whatsoever kind and nature, imposed on, incurred by or asserted against any Indemnitee, in any way relating to or arising out of, or a consequence of, this Lease or the enforcement hereof, including, without limitation, any rental payment or determination to make any such rental payment made by an Indemnitee, or the nonconformity of any Contract Transfer Document manufacture, ordering, purchase, acceptance, rejection, ownership, possession, use, selection, delivery, lease, operation, condition, sale, return or other Collateral with any such applicable law, rule or regulation;
(iv) disposition of the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, Aircraft or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool part thereof (including, without limitation, a defense based on such CP Unit's latent or any related documents' other defects, whether or not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise discoverable by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Lessee or any other interest person, any claim in tort for strict liability and any claim for patent, trademark or copyright infringement). The provisions of this Section shall survive the Contracts expiration or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing early termination of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Lease.
Appears in 1 contract
Sources: Aircraft Dry Lease Agreement
General Indemnity. Without limiting any other rights which any such Person may have hereunder In addition to the payment of expenses pursuant to Section 121.2(a), whether or under applicable lawnot the transactions contemplated hereby shall be consummated, the Borrower hereby indemnifies, and agrees to indemnify each of pay and hold the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Administrative Bank, each Bank, any holder of any Notes, and their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents, employees successors and agents of any of assigns (collectively called the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against against, any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related costs and expensescosts, including reasonable attorneys' fees expenses and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence kind or willful misconduct on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay the Lender pursuant to this Agreement and the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation nature whatsoever (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses disbursements of counsel for any of such Indemnitees in defending connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by, or asserted against the sameIndemnitees (or any of them), which may arise by reason in any manner relating to or arising out of the loans or commitments hereunder or Loan Documents, the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant statements contained in any Contractcommitment letters delivered by a Bank, Required Documentthe Banks' several agreements to make the Loans, Contract Transfer Document or related agreements the use or intended use of the proceeds of any of the Loans (including without limitation in connection the "Indemnified Liabilities"); provided, however, that the Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities arising from the origination documentation and servicing gross negligence or willful misconduct of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to such Indemnitee. To the extent that such liability arising out the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of such any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required Liabilities incurred by the terms Indemnitees or any of the Transaction Documentsthem.
Appears in 1 contract
Sources: Credit Agreement (Pemstar Inc)
General Indemnity. Without limiting In addition to the payment of expenses pursuant to Section 9.3, whether or not the transactions contemplated hereby shall be consummated, Borrowers hereby jointly and severally agree to indemnify, pay and hold Bank and any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each holder(s) of the AgentNote, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling personsagents and affiliates of Bank and such holder(s) (collectively, employees and agents of any of the foregoing (each an "Indemnified PartyIndemnitees"), forthwith on demand, ) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities costs, expenses and related costs and expensesdisbursements of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of or relating to this Agreement, any of the other Transaction Documents or the ownership any other agreement, document or funding instrument executed and delivered by either of the Loans (Borrowers or any portion thereof) other Obligor in connection herewith or therewith, the statements contained in respect any commitment letters delivered by Bank, Bank's agreement to make the Loans hereunder or the use or intended use of the proceeds of any CollateralLoan hereunder (collectively, excluding, however, Excluded Taxes and Indemnified Amounts the "indemnified liabilities"); provided that Borrowers shall have no obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, no longer subject to appeal pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or review). Without limiting the foregoingpublic policy, the each Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that it is permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the this Section 9.5 shall survive satisfaction and payment of any Contract or any CP Unit in, or purporting to be in, Borrowers' Obligations and the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations termination of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Agri Nutrition Group LTD)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable lawIn addition to the payment of expenses pursuant to Section 8.03, the Borrower Borrowers hereby agrees jointly and severally agree to indemnify defend, indemnify, pay and hold the Agent and each Lender and any holder(s) of the AgentNotes, and the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate), each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholdersemployees, controlling persons, employees agents and agents of any affiliates of the foregoing Agent and each Lender and such holder(s) (each an "Indemnified Party")collectively, forthwith on demand, the “Indemnitees”) harmless from and against any and all damagesother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, liabilities and related disbursements, costs and expensesexpenses of any kind or nature whatsoever (including, including without limitation, the reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto), that may be imposed on, incurred by or asserted against the Indemnitees, in any of them manner relating to or arising out of this Agreement, any of the other Transaction Documents, any other agreement, document or relating instrument executed and delivered by any Borrower or any other Obligor in connection herewith or therewith or any commitment letter delivered by the Agent or any Lender to the Transaction Documents any Borrower, or the ownership or funding agreement of the Lenders to make the Loans and/or of U.S. Bank to issue Letters of Credit under this Agreement (or any portion thereofcollectively, the “indemnified liabilities”); provided that (a) or in the Borrowers shall have no obligation to an Indemnitee hereunder with respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to indemnified liabilities arising from the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party (that Indemnitee as finally determined by a court of competent jurisdictionjurisdiction in a final, nonappealable order and (b) the Borrowers shall have no longer subject obligation to appeal indemnify the Agent or review)any Lender with respect to disputes between the Agent and any one or more of the Lenders or with respect to disputes among one or more of the Lenders. Without limiting To the foregoingextent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrower Borrowers shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) contribute the obligation maximum portion that they are permitted to repay the Lender pursuant to this Agreement pay and the grant of a security interest satisfy under applicable law to the Collateral Agent pursuant to payment and satisfaction of all indemnified liabilities incurred by the Intercreditor Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (Indemnitees or any of its officers) under or in connection with any Transaction Document, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral), or the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests them. The provisions of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay undertakings and indemnification set out in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity this Section 8.05 shall survive satisfaction and payment of the interest of Borrower’s Obligations owed by any Secured Party in any Collateral (including without limitation any such dispute based on preference one or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason more of the loans or commitments hereunder or Borrowers and the interests termination of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsthis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Labarge Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify each of the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Lenders, each of their respective Affiliates, and all successors, transferees, participants and assigns thereof and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "“Indemnified Party"”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' ’ fees and disbursements (all of the foregoing being collectively referred to as "“Indemnified Amounts"”) awarded against or incurred by any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateraltransactions contemplated thereby, excluding, however, Excluded Taxes and Indemnified Amounts (i) to the extent resulting determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any such Indemnified Party and (as finally determined by a court ii) to the extent constituting recourse for Receivables which are uncollectible due to the bankruptcy, insolvency or financial inability to pay of competent jurisdiction, no longer subject to appeal or review)the relevant Obligor. Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the obligation to repay transfer by the Lender pursuant to this Agreement and Borrower of any interest in any Pool Asset other than the grant of a security interest to the Collateral Agent pursuant to the Intercreditor Security Agreement;
(ii) the breach of any representation or warranty made by a Relevant Party (the Borrower or any of its officers) the Servicer under or in connection with any Transaction Document, any Manager Servicer Report, any Settlement Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Documenton behalf of the Borrower or the Servicer pursuant hereto, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed made;
(iii) the failure by a Relevant Party the Borrower or the Servicer or any of their affiliates to comply with any applicable law, rule or regulation (including, without limitation, with respect to any securities law, rule or regulation pertaining to the acquisition of Collateral), Pool Asset or the nonconformity of any Contract Transfer Document or other Collateral Pool Asset with any such applicable law, rule or regulation;
(iv) the failure of the Borrower to vest own or hold sufficient rights in the software the license of which is the subject of any Pool Receivable to the extent necessary to cause such Pool Receivable to (A) constitute a valid and binding obligation, enforceable by Borrower against the applicable Obligor, (B) be owned by Borrower free and clear of any Adverse Claim and (C) to be pledged by the Borrower as contemplated in this Agreement and the Security Agreement;
(v) the failure to grant and maintain vested granted in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, Pool Assets free and clear of any Lien, whether existing at the time of any Loan or at any time thereafterAdverse Claim;
(vvi) the failure to file, or any delay in filing any filing, financing statements, assignment statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Pool Asset, whether at the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest time of any Secured Party in Loans or at any Collateral (including without limitation any such dispute based on preference or similar laws)time thereafter;
(vivii) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of an Obligor) of an Obligor to the payment of any Contract or any CP Unit Receivable in, or purporting to be in, the CP Unit Receivables Pool (including, without limitation, a defense based on such CP Unit's Receivable or any the related documents' Contract not being a legal, valid and binding obligations obligation of an such Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms), or any other claim resulting from any action the licensing of software, the sale of the merchandise or services (maintenance or otherwise) related to such Receivable or the furnishing or failure to act of a Relevant Partyfurnish such merchandise or services;
(viiviii) any failure of a Relevant Party Aspen, as Servicer or otherwise, to perform its duties or obligations under in accordance with the provisions of the Transaction Documents, including, without limitation, any failure by Aspen to deliver any “Exchange Amount” to the Agent or delivery by the Servicer of the Agent of any “Collected FX Amount” (as each such term is defined in the Purchase and Sale Agreement);
(viiiix) any failure by Aspen to originate any Receivable in accordance with the Credit and Collection Policy or any applicable law, rule or regulation;
(x) any claim, investigation, litigation or proceeding arising out of or in connection with merchandise or services that are the subject of any Pool Receivable;
(xi) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable;
(xii) any tax or governmental fee or charge (other than an Excluded Taxbut not including taxes upon or measured by net income), all interest and penalties thereon or with respect thereto, and all documented out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder or the interests making of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof Loans or any other interest in the Contracts or other CollateralPool Receivables;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(xxiii) the commingling by the Borrower or Aspen of collections on or related to the Contracts and other Collateral Collections of Pool Receivables at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xiixiv) any loss resulting from failure litigation or proceeding related to this Agreement or any other Transaction Document or the use of a Relevant Party to maintain insurance as required by the terms proceeds of the Transaction Documentsany Loan.
Appears in 1 contract
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, (a) Indemnification by the Borrower hereby agrees to Company. The Company will indemnify each of and hold harmless the Agent, the Lender, XXXXXXXX, the Collateral Agent (if other than the Borrower or its Affiliate)Purchaser, each of their respective Affiliatesits directors, successors, transferees, participants fund managers and assigns and all officers, directorsand each person, shareholdersif any, controlling persons, employees and agents who controls the Purchaser within the meaning of any Section 15 of the foregoing Securities Act of 1933, as amended (each an the "Indemnified PartySecurities Act"), forthwith on demandor Section 20(a) of the Securities Exchange Act, as amended (the "Exchange Act"), from and against any and all damages, losses, claims, damages, liabilities and related expenses (including reasonable costs of defense and expenses, including investigation and all reasonable attorneys' fees fees) to which the Purchaser, each of its directors, fund managers and disbursements officers, and each person, if any, who controls the Purchaser may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities and expenses (all or actions in respect thereof) arise out of or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained, or incorporated by reference, in the Registration Statement relating to the Common Stock being sold to the Purchaser (including any Prospectus Supplement filed in connection with the transactions contemplated hereunder which are a part of it), or any amendment or supplement to it, or (ii) the omission or alleged omission to state in that Registration Statement or any document incorporated by reference in the Registration Statement, a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that the Company shall not be liable under this Section 1(a) to the extent that a court of competent jurisdiction shall have determined by a final judgment (with no appeals available) that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act, undertaken or omitted to be taken by the Purchaser or such person through its bad faith or willful misconduct; provided, however, that the foregoing being collectively referred indemnity shall not apply to as "Indemnified Amounts") awarded against any loss, claim, damage, liability or incurred by any of them expense to the extent, but only to the extent, arising out of or relating based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Transaction Documents Company by the Purchaser expressly for use in the Registration Statement, any preliminary prospectus or the ownership or funding of the Loans prospectus (or any portion thereofamendment or supplement thereto); and provided, further, that with respect to the prospectus, the foregoing indemnity shall not inure to the benefit of the Purchaser or any such person from whom the person asserting any loss, claim, damage, liability or expense purchased Common Stock, if copies of the prospectus were timely delivered to the Purchaser pursuant hereto and a copy of the prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Purchaser or any such person to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Stock to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense.
(b) The Company will reimburse the Purchaser and each such controlling person promptly upon demand for any legal or other costs or expenses reasonably incurred by the Purchaser or any controlling person in respect of investigating, defending against, or preparing to defend against any Collateralsuch claim, excludingaction, howeversuit or proceeding, Excluded Taxes and Indemnified Amounts except that the Company will not be liable to the extent resulting a claim or action which results in a loss, claim, damage, liability or expense arises out of, or is based upon, an untrue statement, alleged untrue statement, omission or alleged omission, included in any Registration Statement, prospectus or Prospectus Supplement or any amendment or supplement to the thereto in reliance upon, and in conformity with, written information furnished by the Purchaser to the Company for inclusion in the Registration Statement, prospectus or Prospectus Supplement.
(c) Indemnification by the Purchaser. The Purchaser will indemnify and hold harmless the Company, each of its directors and officers, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act from gross negligence and against any losses, claims, damages, liabilities and expenses (including reasonable costs of defense and investigation and all attorneys' fees) to which the Company and each director, officer and person, if any, who controls the Company may become subject, under the Securities Act or willful misconduct on the part of otherwise, insofar as such Indemnified Party losses, claims, damages, liabilities and expenses (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising actions in respect thereof) arise out of or relating to:
are based upon, (i) the obligation to repay the Lender pursuant to this Agreement and the grant any untrue statement or alleged untrue statement of a security interest material fact contained in the Registration Statement or any prospectus or Prospectus Supplement or any amendment or supplement to the Collateral Agent pursuant to the Intercreditor Agreement;
it or (ii) the breach of any representation omission or warranty made by a Relevant Party (alleged omission to state in the Registration Statement or any of its officers) under prospectus or in connection with any Transaction Document, any Manager Report Prospectus Supplement or any other information amendment or report delivered by such Relevant Party supplement to it a material fact required to be stated therein or its officers in connection with a Transaction Documentnecessary to make the statements therein not misleading, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by a Relevant Party to comply with any applicable law, rule or regulation (including, without limitation, any securities law, rule or regulation pertaining to the acquisition of Collateral)extent, but only to the extent, the untrue statement, alleged untrue statement, omission or alleged omission was made in reliance upon, and in conformity with, written information furnished by the nonconformity of any Contract Transfer Document or other Collateral with any such applicable law, rule or regulation;
(iv) Purchaser to the failure to vest and maintain vested Company for inclusion in the Collateral Agent a first priority perfected security interest in and lien on the Collateral, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document to the Collateral Agent (as applicable); or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be inRegistration Statement, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's prospectus or any related documents' not being legal, valid and binding obligations of Prospectus Supplement or an Obligor amendment or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect supplement thereto, and all the Purchaser will reimburse the Company and each such director, officer or controlling person promptly upon demand for any legal or other costs and expenses, including or expenses reasonably incurred by the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the loans or commitments hereunder Company or the interests of the Indemnified Parties other person in investigating, defending against, or lien on the Contracts and other Collateralpreparing to defend against any such claim, any portion thereof action, suit or any other interest in the Contracts or other Collateral;
(ix) the failure by a Relevant Party to comply with any term, provision or covenant contained in any Contract, Required Document, Contract Transfer Document or related agreements (including without limitation in connection with the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related to the Contracts and other Collateral at any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsproceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Columbia Laboratories Inc)
General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower Sub-lessee hereby agrees to indemnify each of and hold harmless the AgentGrantor/Sub- Lessor, the Lender, XXXXXXXXJekyll Island State Park Authority, the Collateral Agent (if other than the Borrower or State of Georgia and its Affiliate)departments, each agencies and instrumentalities and all of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling personsmembers, employees and agents of any of directors (hereinafter collectively referred to as the foregoing (each an "Indemnified Partyindemnitees"), forthwith on demand, ) from and against any and all damagesclaims, demands, liabilities, losses, claims, liabilities and related costs and or expenses, including reasonable attorneys' fees ’ fees, due to liability to a third party or parties, for any loss due to bodily injury (including death), personal injury, and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them property damage arising out of performance of this Sublease or relating to the Transaction Documents or the ownership or funding of the Loans (or any portion thereof) or in respect of any Collateral, excluding, however, Excluded Taxes and Indemnified Amounts to the extent resulting from gross negligence any act or willful misconduct omission on the part of such Indemnified Party (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review). Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating toof:
(i) the obligation to repay Sub-lessee, its agents, employees or others working at the Lender pursuant to this Agreement and the grant direction of a security interest to the Collateral Agent pursuant to the Intercreditor Agreement;Sub-lessee or on its behalf or invitees of Sub-lessee , or
(ii) the breach act or omissions of any representation Sub-lessee’s sub-lessee or warranty made by a Relevant Party (such sub-lessee's employees or any others working at the direction of its officers) under such sub-lessee or in connection with any Transaction Documentinvitees of such sub-lessee, any Manager Report or any other information or report delivered by such Relevant Party or its officers in connection with a Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made;or
(iii) due to any breach of this Sublease by the failure by a Relevant Party to comply with any applicable lawSub-lessee, rule or regulation or
(including, without limitation, any securities law, rule or regulation pertaining iv) due to the acquisition of Collateral), violation by Sub-lessee or the nonconformity any Sub-lessee’s sub-lessees of any Contract Transfer Document pertinent federal, state or other Collateral with any such applicable local law, rule or regulation;
(iv) . This indemnification obligation survives the failure to vest termination of the Sublease and maintain vested in the Collateral Agent a first priority perfected security interest in and lien on the Collateraldissolution or, free and clear of any Lien, whether existing at the time of any Loan or at any time thereafter;
(v) the failure to file, or any delay in filing any financing statements, assignment or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the interests extent allowed by law, the bankruptcy of the Borrower or any Secured Party to any Contract or other Collateral; or the failure to deliver, or any delay in delivering, any Required Document Sub-lessee. If and to the Collateral Agent (as applicable); extent such damage or any dispute relating to the enforceability, priority or validity of the interest of any Secured Party in any Collateral loss (including without limitation any such dispute based on preference or similar laws);
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) to the payment of any Contract or any CP Unit in, or purporting to be in, the CP Unit Pool (including, without limitation, a defense based on such CP Unit's or any related documents' not being legal, valid and binding obligations of an Obligor or a party to a Contract Transfer Document, enforceable against it in accordance with its terms, or resulting from any action or failure to act of a Relevant Party;
(vii) any failure of a Relevant Party to perform its duties or obligations under the Transaction Documents;
(viii) any tax or governmental fee or charge (other than an Excluded Tax), all interest and penalties thereon or with respect thereto, and all costs and expenses) as covered by this indemnification is paid by the State Tort Claims Trust Fund, including the reasonable fees State Authority Liability Trust Fund, the State Employee Broad Form Liability Fund, the State Insurance and expenses of counsel in defending against the sameHazard Reserve Fund, which may arise by reason of the loans or commitments hereunder or the interests of the Indemnified Parties in or lien on the Contracts and other Collateral, any portion thereof or any other interest in self-insured funds (all such funds hereinafter collectively referred to as the Contracts or other Collateral;
"Funds”) established and maintained by the State of Georgia Department of Administrative Services Risk Management Division (ixhereinafter "DOAS") the failure Sub-lessee agrees to reimburse the Funds for such monies paid out by a Relevant Party the Funds. This indemnification does not extend beyond the scope of this Sublease and the activities undertaken thereunder. Nor does this indemnification extend to comply with any term, provision claims for losses or covenant contained in any Contract, Required Document, Contract Transfer Document injuries or related agreements (including without limitation in connection with damages incurred directly by the origination documentation and servicing of Contracts and Related Property);
(x) the commingling of collections on or related Indemnitees due to the Contracts and other Collateral at sole negligence of any time with other funds;
(xi) any liability arising out of a claim or cause of action asserted by any person against an Indemnified Party on account of its or any other Indemnified Party's interests in the Contracts and other Collateral, except to the extent that such liability arising out of such Indemnified Party's gross negligence or wilful misconduct (as finally determined by a court of competent jurisdiction, no longer subject to appeal or review); or
(xii) any loss resulting from failure of a Relevant Party to maintain insurance as required by the terms of the Transaction Documentsindemnitee.
Appears in 1 contract
Sources: Ground Lease