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This excerpt taken from the AYR 8-K filed May 5, 2008. Indemnified
Party”) from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation,
reasonable external attorneys’ fees, but excluding principal and accrued
interest on any Loan) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Related Documents, any of the transactions contemplated herein, any ACS Group
Aircraft, Engine or other Collateral, any possession, performance,
transportation, management, sale, ownership, registration, mortgage, charging,
control, maintenance, service, repair, design, testing, defect, overhaul,
purchase, bearing, use or operation of any ACS Group Aircraft, Engine or other
Collateral, or the actual or proposed use of the proceeds of the Loans, except
to the extent such claim, damage, loss, liability, cost, or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful
misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.9
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. Each Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries or any security
holders or creditors thereof arising out of, related to or in connection with
the transactions contemplated in any Related Document, except to the extent that
such liability directly results from such Indemnified Party’s gross negligence
or willful misconduct. Each Borrower agrees not to assert any claim
against the Facility Agent, the Joint Lead Arrangers, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys, Facility Agents, and advisers, on any theory of liability, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Related Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Loans.
(b) All
payments made under Sections 4.1, .4.4, 4.6 or 8.9(a) shall be paid as Special
Indemnity Payments pursuant to the flow of funds set forth in Section 3.08 of
the Intercreditor Agreements.
(c) Without
prejudice to the survival of any other agreement of any Borrower hereunder, the
agreements and obligations of each Borrower contained in this Section 8.9
shall survive the payment in full of the Loans and all other amounts payable
under this Agreement.
8.10. Joint Lead Arrangers. The
Joint Lead Arrangers shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than the rights to receive
reimbursement or payment of costs or expenses incurred by them as provided in
Section 8.5 and the right to indemnity under Section 8.9.
29
8.11. Severability. If any
provision of this Agreement or the other Related Documents shall be determined
to be illegal or invalid as to one or more of the parties hereto, then such
provision shall remain in effect with respect to all parties, if any, as to whom
such provision is neither illegal nor invalid, and in any event all other
provisions hereof shall remain effective and binding on the parties
hereto.
8.12. Entire Agreement. This
Agreement, together with the other Related Documents, constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all previous proposals, negotiations, representations, and other
communications between or among the parties, both oral and written, with respect
thereto.
8.13. Payments. All principal,
interest, and other amounts to be paid by any Borrower under this Agreement and
the other Related Documents shall be paid to the Facility Agent at the Principal
Office in Dollars and in immediately available funds, without setoff, deduction
or counterclaim. Subject to the definition of “Interest Period” in
Annex A, whenever any payment under this Agreement or any other Related
Document shall be stated to be due on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time in such case shall be included in the computation of interest and fees, as
applicable, and as the case may be.
8.14. Confidentiality. The
Facility Agent and each Lender (each, a “ This excerpt taken from the AYR 8-K filed May 5, 2008. Indemnified
Party”) from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation,
reasonable external attorneys’ fees, but excluding principal and accrued
interest on any Loan) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Related Documents, any of the transactions contemplated herein, any ACS Group
Aircraft, Engine or other Collateral, any possession, performance,
transportation, management, sale, ownership, registration, mortgage, charging,
control, maintenance, service, repair, design, testing, defect, overhaul,
purchase, bearing, use or operation of any ACS Group Aircraft, Engine or other
Collateral, or the actual or proposed use of the proceeds of the Loans, except
to the extent such claim, damage, loss, liability, cost, or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful
misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.9
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. Each Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries or any security
holders or creditors thereof arising out of, related to or in connection with
the transactions contemplated in any Related Document, except to the extent that
such liability directly results from such Indemnified Party’s gross negligence
or willful misconduct. Each Borrower agrees not to assert any claim
against the Facility Agent, the Joint Lead Arrangers, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys, Facility Agents, and advisers, on any theory of liability, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Related Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Loans.
(b) All
payments made under Sections 4.1, .4.4, 4.6 or 8.9(a) shall be paid as Special
Indemnity Payments pursuant to the flow of funds set forth in Section 3.08 of
the Intercreditor Agreements.
(c) Without
prejudice to the survival of any other agreement of any Borrower hereunder, the
agreements and obligations of each Borrower contained in this Section 8.9
shall survive the payment in full of the Loans and all other amounts payable
under this Agreement.
8.10. Joint Lead Arrangers. The
Joint Lead Arrangers shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than the rights to receive
reimbursement or payment of costs or expenses incurred by them as provided in
Section 8.5 and the right to indemnity under Section 8.9.
29
8.11. Severability. If any
provision of this Agreement or the other Related Documents shall be determined
to be illegal or invalid as to one or more of the parties hereto, then such
provision shall remain in effect with respect to all parties, if any, as to whom
such provision is neither illegal nor invalid, and in any event all other
provisions hereof shall remain effective and binding on the parties
hereto.
8.12. Entire Agreement. This
Agreement, together with the other Related Documents, constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all previous proposals, negotiations, representations, and other
communications between or among the parties, both oral and written, with respect
thereto.
8.13. Payments. All principal,
interest, and other amounts to be paid by any Borrower under this Agreement and
the other Related Documents shall be paid to the Facility Agent at the Principal
Office in Dollars and in immediately available funds, without setoff, deduction
or counterclaim. Subject to the definition of “Interest Period” in
Annex A, whenever any payment under this Agreement or any other Related
Document shall be stated to be due on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time in such case shall be included in the computation of interest and fees, as
applicable, and as the case may be.
8.14. Confidentiality. The
Facility Agent and each Lender (each, a “ | EXCERPTS ON THIS PAGE:
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