Common use of Defenses to Claims Clause in Contracts

Defenses to Claims. It shall be a defense to any such action that such indemnification or advancement of costs of defense is not permitted under the TBOC, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including, its independent legal counsel, the Member or the Manager) to have made its determination prior to the commencement of such action that indemnification of, or advancement of costs of defense to, the claimant is permissible in the circumstances nor an actual determination by the Company (including, its independent legal counsel, the Member or the Manager) that such indemnification or advancement is not permissible shall be a defense to the action or create a presumption that such indemnification or advancement is not permissible.

Defenses to Claims. It shall be a defense to any such action that such indemnification or advancement of costs of defense is not permitted under the TBOCAct, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including, its independent legal counsel, counsel or the Member or the ManagerBoard of Directors) to have made its determination prior to the commencement of such action that indemnification of, or advancement of costs of defense to, the claimant is permissible in the circumstances nor an actual determination by the Company (including, its independent legal counsel, counsel or the Member or the ManagerBoard of Directors) that such indemnification or advancement is not permissible shall be a defense to the action or create a presumption that such indemnification or advancement is not permissible.