|
Section 5.3. Indemnification.
<br /> The Borrower releases the Issuer and the Trustee from, agrees that the Issuer and the
<br /> Trustee shall not be liable for, and indemnifies, defends and holds the Issuer and the Trustee
<br /> harmless against, all liabilities, claims, costs and expenses and attorneys' fees imposed upon,
<br /> incurred or asserted against the Issuer or the Trustee on account of: (i) any loss or damage to
<br /> property or injury to or death of or loss by any person that may be occasioned by any cause
<br /> whatsoever pertaining to the acquisition, financing, construction, occupation, possession,
<br /> management, equipping, furnishing, maintenance, operation and use of the Project or from any
<br /> work or thing done in or about the Project site, or any sidewalks, passageways, driveways, curbs,
<br /> vaults and vault space, streets or parking areas on the Project site or adjacent thereto; (ii) any
<br /> breach or default on the part of the Borrower in the performance of any covenant or agreement of
<br /> the Borrower under this Agreement, the Regulatory Agreement, or any related document, or
<br /> arising from any act or failure to act by the Borrower, or any of its agents, contractors, servants,
<br /> employees or licensees; (iii) the Borrower's failure to comply with any of the covenants
<br /> contained in this Agreement, including, without limitation, the covenant in Section 5.4 hereof;
<br /> (iv) any action taken or omitted to be taken by the Issuer or the Trustee at the request of or with
<br /> the consent of the Borrower including, without limitation, filing any required forms with the IRS
<br /> or other governmental agencies; (v) the issuance, sale or delivery of the Bonds and the
<br /> Borrower's furnishing information concerning the Project, the Borrower, its financial status or
<br /> other matters relating to the Borrower; and (vi) any claim, action or proceeding brought with
<br /> respect to any matter set forth in clause (i), (ii), (iii), (iv) or (v) above; provided, however, that
<br /> the indemnification provided in this Section shall not apply with regard to the Trustee to any
<br /> matter arising or resulting from the gross negligence or willful misconduct of the Trustee or to
<br /> any information provided by the Trustee in writing for use in connection with the offering and
<br /> sale of the Bonds and shall be limited to Surplus Cash.
<br /> The Borrower agrees to indemnify the Trustee for and to hold it harmless against all
<br /> liabilities, claims, costs and expenses incurred without negligence or willful misconduct on the
<br /> part of the Trustee, on account of any action taken or omitted to be taken by the Trustee in
<br /> accordance with the terms of this Agreement, the Bonds, the Regulatory Agreement, the Note or
<br /> the Indenture or any action taken at the request of or with the consent of the Borrower, including
<br /> the costs and expenses of the Trustee in defending itself against any such claim, action or
<br /> proceeding brought in connection with the exercise or performance of any of its powers or duties
<br /> under this Agreement, the Bonds,the Indenture, the Regulatory Agreement or the Note.
<br /> In case any action or proceeding is brought against the Issuer or the Trustee in respect of
<br /> which indemnity may be sought hereunder, the party seeking indemnity promptly shall give
<br /> notice of that action or proceeding to the Borrower, and the Borrower upon receipt of that notice
<br /> shall have the obligation and the right to assume the defense of the action or proceeding;
<br /> provided, that failure of a party to give that notice shall not relieve the Borrower from any of its
<br /> obligations under this Section unless that failure materially prejudices the defense of the action
<br /> or proceeding by the Borrower. At the Borrower's expense, an indemnified party may employ
<br /> separate counsel and participate in the defense; provided, however, that the indemnified parties,
<br /> as a group, may only retain one separate counsel in any action or proceeding (or series of related
<br /> actions or proceedings) at the expense of the Borrower, unless the interests of the indemnified
<br /> parties are not aligned with one another. The Borrower shall not be liable for any settlement
<br /> 15
<br />
|