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Common use of Indemnification by the Manager Clause in Contracts

Indemnification by the Manager. The Manager agrees to indemnify and hold harmless the Selling Agent and each person, if any, who controls the Selling Agent within the meaning of Section 15 of the 1933 Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment thereto) or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating to the Selling Agent or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Act.

Appears in 7 contracts

Samples: Selling Agreement (ML APM Global Commodity FuturesAccess LLC), Selling Agreement (ML Systematic Momentum FuturesAccess LLC), Selling Agreement (ML Chesapeake FuturesAccess LLC)

Indemnification by the Manager. The Manager agrees to indemnify and hold harmless the Selling Agent and each person, if any, who controls the Selling Agent within the meaning of Section 15 of the 1933 Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment thereto) or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating to the Selling Agent or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's ’s indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's ’s indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Act.

Appears in 6 contracts

Samples: Selling Agreement (Man AHL FuturesAccess LLC), Selling Agreement (ML Systematic Momentum FuturesAccess LLC), Selling Agreement (ML BlueTrend FuturesAccess LLC)

Indemnification by the Manager. The (a) Each Manager agrees agrees, with respect to each Portfolio that it manages, to indemnify and hold harmless the Selling Agent Company and each of its directors and officers and each person, if any, who controls the Selling Agent Company within the meaning of Section 15 of the 1933 ActAct (collectively, the "Indemnified Parties" and individually, "Indemnified Party," for purposes of this Section 8.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Adviser) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as followssuch losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the sale or acquisition of shares of the Portfolio that it manages or the Contracts and: (i) against any and all loss, liability, claim, damage and expense whatsoever arising arise out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) are based upon any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum registration statement or prospectus or sales literature of the Fund (or any amendment thereto) or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or arising omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to the Fund by or on behalf of the Company for use in the registration statement or prospectus for the Fund or in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Contracts or Portfolio shares; or (ii) arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature for the Contracts not supplied by the Fund or persons under its control and other than statements or representations authorized by the Company) or unlawful conduct of the Fund, Manager(s) or Underwriter or persons under their control, with respect to the sale or distribution of the Contracts or Portfolio shares; or (iii) arise out of or as a result of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, or sales literature covering the Memorandum (Contracts, or any amendment thereof or supplement thereto) , or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statement or statements therein, in light of the circumstances under which they were made, therein not misleading, unless if such untrue statement or omission or alleged untrue statement or omission was made in reliance upon information furnished to the Company by or on behalf of the Fund; or (iv) arise as a result of any failure by the Fund to provide the services and furnish the materials under the terms of this Agreement; or (v) arise out of or result from any material breach of any representation and/or warranty made by the Manager in this Agreement or arise out of or result from any other material breach of this Agreement by the Manager; as limited by and in conformity with information relating to the Selling Agent or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected accordance with the written consent provisions of the Manager); and (iiiSections 8.2(b) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel8.2(c) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Acthereof.

Appears in 5 contracts

Samples: Participation Agreement (Glenbrook Life Multi-Manager Variable Account), Participation Agreement (Allstate Financial Advisors Separate Account I), Participation Agreement (Lsa Variable Series Trust)

Indemnification by the Manager. The Manager agrees will, as to each registration in which the Manager participates, indemnify the Company, each of its directors and hold harmless the Selling Agent officers, each underwriter and each person, if any, person who controls the Selling Agent Company or such underwriter within the meaning of Section 15 of either the 1933 Securities Act or the Exchange Act, as follows: and the Manager, each of its officers, directors and partners and each person controlling the Manager, against all claims, losses, expenses, damages and liabilities (ior actions, proceedings or settlements in respect thereof) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or based on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement (or alleged untrue statement statement) of a material fact contained in the Memorandum (any Registration Statement as originally filed or in any amendment thereto) , or in any preliminary Prospectus, Prospectus or Prospectus Supplement, or any omission (or alleged omission therefrom of omission) to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out (in the case of any untrue statement preliminary Prospectus or alleged untrue statement of a material fact contained the Prospectus or any Prospectus Supplement, in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made), not misleadingand will reimburse the Company, unless and each of its directors, officers, partners, underwriters and controlling persons for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement or omission (or alleged untrue statement statement) or omission was (or alleged omission) is made in any such Registration Statement as originally filed or any amendment thereto, preliminary Prospectus, Prospectus or Prospectus Supplement, in reliance upon and in conformity with written information relating furnished to the Selling Agent or a Trading Advisor or furnished or approved Company by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants specifically for use therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that (i) the Manager mayindemnity agreement contained in this Section 7.2 shall not apply to amounts paid in settlement of any such claim, upon loss, damage, liability or action if such settlement is effected without the mutual agreement consent of the Manager (which consent shall not be unreasonably withheld) and (ii) that the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both total amount for which the Manager and shall be liable under this Section 7.2. shall not in any event exceed the indemnified party and representation of both aggregate net proceeds received by the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls Registrable Shares held by the Manager within the meaning of Section 15 of the 1933 Actin such registration.

Appears in 4 contracts

Samples: Registration Rights Agreement (Macquarie Infrastructure Holdings, LLC), Registration Rights Agreement (Macquarie Infrastructure Holdings, LLC), Registration Rights Agreement (Macquarie Infrastructure Co LLC)

Indemnification by the Manager. The Manager agrees will, as to each registration in which the Manager participates, indemnify the Company, each of its directors and hold harmless the Selling Agent officers, each underwriter and each person, if any, person who controls the Selling Agent Company or such underwriter within the meaning of Section 15 of either the 1933 Securities Act or the Exchange Act, as follows: and the Manager, each of its officers, directors and partners and each person controlling the Manager, against all claims, losses, expenses, damages and liabilities (ior actions, proceedings or settlements in respect thereof) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or based on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement (or alleged untrue statement statement) of a material fact contained in the Memorandum (any Registration Statement as originally filed or in any amendment thereto) thereof, or in any preliminary Prospectus or the Prospectus, or any omission (or alleged omission therefrom of omission) to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out (in the case of any untrue statement preliminary Prospectus or alleged untrue statement of a material fact contained the Prospectus, in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made), not misleadingand will reimburse the Company, unless and each of its directors, officers, partners, underwriters and controlling persons for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement or omission (or alleged untrue statement statement) or omission was (or alleged omission) is made in any such Registration Statement as originally filed or any amendment thereof, preliminary Prospectus or Prospectus, in reliance upon and in conformity with written information relating furnished to the Selling Agent or a Trading Advisor or furnished or approved Company by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants specifically for use therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that (i) the Manager mayindemnity agreement contained in this Section 7.2 shall not apply to amounts paid in settlement of any such claim, upon loss, damage, liability or action if such settlement is effected without the mutual agreement consent of the Manager (which consent shall not be unreasonably withheld) and (ii) that the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both total amount for which the Manager and shall be liable under this Section 7.2. shall not in any event exceed the indemnified party and representation of both aggregate net proceeds received by the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls Registrable Shares held by the Manager within the meaning of Section 15 of the 1933 Actin such registration.

Appears in 4 contracts

Samples: Registration Rights Agreement (Macquarie Infrastructure Management (USA) INC), Registration Rights Agreement (Macquarie Infrastructure CO Trust), Registration Rights Agreement (Macquarie Infrastructure CO Trust)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Committee, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 3 contracts

Samples: Registration Rights Agreement (Usg Corp), Registration Rights Agreement (Usg Corp), Registration Rights Agreement (Brinks Co)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will indemnify and hold harmless the Selling Agent Company, the Committee, each member of the Committee, each of the Company’s directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Boeing Indemnitees”), as follows: (i) from and against any and all lossLosses to which the Boeing Indemnitees may become subject under the Securities Act, liabilitythe Exchange Act, claimor any other federal or state statutory law or regulation, damage and expense whatsoever arising or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed) only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf respecting the sale of the ManagerRegistrable Shares, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) , or any arise out of or are based upon the omission or alleged omission therefrom to state in any of them a material fact required to be stated therein or necessary in order to make the statements therein in any of them not misleading or arising out of any misleading, in each case only to the extent that such untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission was made in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent on behalf of the Manager); and (iii) against , and the Manager will reimburse the Boeing Indemnitees for any and all expense whatsoever with respect to each Company (including the reasonable legal fees and disbursements of counsel) reasonably other reasonable out-of-pocket as such expenses are incurred by the Boeing Indemnitees in connection with investigating, preparing or defending against litigationdefending, settling, compromising, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon paying any such untrue statement Loss or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or themaction; provided, however, that the Manager mayshall not be liable for any such untrue statement or alleged untrue statement or omission or alleged omission with respect to which the Manager has delivered to the Company in writing a correction before the occurrence of the transaction from which such Loss was incurred. Notwithstanding anything in this Agreement to the contrary, upon in no event shall the mutual agreement liability of the Manager and under this Section 1.3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Boeing Co), Registration Rights Agreement (Boeing Co)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Committee, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (A) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (B) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company compromising or paying any such Loss or action. In no event shall the liability of the Manager under this Section 3 be greater than the aggregate fees received by the Manager pursuant to the extent of Investment Management Agreement unless such Loss arises from the aggregate amount paid in settlement of any litigation, gross negligence or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent willful misconduct of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Act.

Appears in 2 contracts

Samples: Registration Rights Agreement (Furniture Brands International Inc), Registration Rights Agreement (Furniture Brands International Inc)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 5 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Xerox Corp), Registration Rights Agreement (Xerox Corp)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Committee, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (A1) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Securities or (B2) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 5 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Alcoa Inc), Registration Rights Agreement (Alcoa Inc)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, Detroit Edison, the Plan Sponsor, the Committee, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Dte Energy Co)

Indemnification by the Manager. The Manager agrees will, as to each registration in which the Manager participates, indemnify the Company, each of its directors and hold harmless the Selling Agent officers, each underwriter and each person, if any, person who controls the Selling Agent Company or such underwriter within the meaning of Section 15 of the 1933 Securities Act, as follows: and the Manager, each of its officers, directors and partners and each person controlling the Manager, against all claims, losses, expenses, damages and liabilities (ior actions, proceedings or settlements in respect thereof) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or based on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement (or alleged untrue statement statement) of a material fact contained in the Memorandum (any Registration Statement as originally filed or in any amendment thereto) thereof, or in any preliminary Prospectus or the Prospectus, or any omission (or alleged omission therefrom of omission) to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out (in the case of any untrue statement preliminary Prospectus or alleged untrue statement of a material fact contained the Prospectus, in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made), not misleadingand will reimburse the Company, unless and each of its directors, officers, partners, underwriters and controlling persons for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement or omission (or alleged untrue statement statement) or omission was (or alleged omission) is made in any such Registration Statement as originally filed or any amendment thereof, preliminary Prospectus or Prospectus, in reliance upon and in conformity with written information relating furnished to the Selling Agent or a Trading Advisor or furnished or approved Company by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants specifically for use therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that (i) the Manager mayindemnity agreement contained in this Section 7.2 shall not apply to amounts paid in settlement of any such claim, upon loss, damage, liability or action if such settlement is effected without the mutual agreement consent of the Manager (which consent shall not be unreasonably withheld) and (ii) that the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both total amount for which the Manager and shall be liable under this Section 7.2. shall not in any event exceed the indemnified party and representation of both aggregate net proceeds received by the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls Registrable Shares held by the Manager within the meaning of Section 15 of the 1933 Actin such registration.

Appears in 1 contract

Samples: Registration Rights Agreement (Macquarie Infrastructure CO Trust)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Committee, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (A) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (B) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent on behalf of the Manager); and (iii) against , and reimburse such Company Indemnitee for any and all expense whatsoever with respect to each Company (including the reasonable legal fees and disbursements of counsel) reasonably other reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, preparing defending, settling, compromising or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon paying any such untrue statement Loss or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Usg Corp)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will indemnify and hold harmless the Selling Agent Company, the Committee, each of the Company’s directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of Section 15 the Securities Act, against any losses, claims, damages, liabilities or expenses to which the Company, each of its directors, each of its officers who signed the Registration Statement or each controlling person may become subject, under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the 1933 ActManager, which consent shall not be unreasonably withheld or delayed) only to the extent such losses, claims, damages, liabilities or expenses (or actions in respect thereof as follows: contemplated below) arise out of or are based upon (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf respecting the sale of the ManagerRegistrable Shares, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, as amended as of the time the Registration Statement was declared effective by the SEC, the Prospectus, or any amendment thereto) or any supplement to the Registration Statement or Prospectus, or arise out of or are based upon the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission was made in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor on behalf of the Manager, and the Manager will reimburse the Company, each of its directors, each of its officers who signed the Registration Statement or furnished or approved each controlling person for any reasonable legal and other expenses as such expenses are reasonably incurred by the Selling Agent Company, each of its directors, each of its officers who signed the Registration Statement or Trading Advisor as the case may be; (ii) against each controlling person in connection with investigating, defending, settling, compromising or paying any and all such loss, claim, damage, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 1.3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Dte Energy Co)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will indemnify and hold harmless the Selling Agent Company, the Committee, each member of the Committee, each of the Company’s directors, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Boeing Indemnitees”), as follows: (i) from and against any and all lossLosses to which the Boeing Indemnitees may become subject under the Securities Act, liabilitythe Exchange Act, claimor any other federal or state statutory law or regulation, damage and expense whatsoever arising or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed) only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf respecting the sale of the ManagerRegistrable Shares, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) , or any arise out of or are based upon the omission or alleged omission therefrom to state in any of them a material fact required to be stated therein or necessary in order to make the statements therein in any of them not misleading or arising out of any misleading, in each case only to the extent that such untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission was made in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent on behalf of the Manager); and (iii) against , and the Manager will reimburse the Boeing Indemnitees for any and all expense whatsoever with respect to each Company (including the reasonable legal fees and disbursements of counsel) reasonably other reasonable out-of-pocket as such expenses are incurred by the Boeing Indemnitees in connection with investigating, preparing defending, settling, compromising or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon paying any such untrue statement Loss or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or themaction; provided, however, that the Manager mayshall not be liable for any such untrue statement or alleged untrue statement or omission or alleged omission with respect to which the Manager has delivered to the Company in writing a correction before the occurrence of the transaction from which such Loss was incurred. Notwithstanding anything in this Agreement to the contrary, upon in no event shall the mutual agreement liability of the Manager and under this Section 1.3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Boeing Co)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Trusts Investment Committee of the Company (the “Committee”), each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (Bii) any untrue statement or alleged untrue statement of a and material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless in any such case only to the extent that such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager expressly for use therein, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 5 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Fortune Brands Inc)

Indemnification by the Manager. The Manager agrees to indemnify and hold harmless the Selling Agent and each person, if any, who controls the Selling Agent within the meaning of Section 15 of the 1933 Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment thereto) or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating to the Selling Agent or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); andand APPENDIX A (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Act.

Appears in 1 contract

Samples: Selling Agreement (ML Transtrend DTP Enhanced FuturesAccess LLC)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, Detroit Edison, the Plan Sponsor, the Committee, each director of the Company, each member of the Committee, each of the Company's officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (A) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (B) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Dte Energy Co)

Indemnification by the Manager. (a) The Manager agrees to indemnify and hold harmless Transamerica Occidental, and the Selling Agent Trust and each of their directors and officers and each person, if any, who controls the Selling Agent Transamerica Occidental within the meaning of Section 15 of the 1933 ActAct (collectively, the "Indemnified Parties" for purposes of this Section 8.3) against any and all losses, claims, damages, liabilities (including, without limitation thereto, amounts paid in settlement with the written consent of the Distributors), investigation of claims or litigation (including, without limitation thereto, legal and other expenses) to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as followssuch losses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the sale or acquisition of the Trust's shares or the Transamerica Occidental Contracts or interests in the Account and: (i) against any and all loss, liability, claim, damage and expense whatsoever arising arise out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) are based upon any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum Registration Statement, prospectus or Statement of Additional Information, or sales literature of the Trust (or any amendment thereto) or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or arising omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to the Manager or Trust by or on behalf of Transamerica Occidental for use in the Registration Statement, prospectus, or Statement of Additional Information for the Trust, or in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Transamerica Occidental Contracts or Trust shares; or (ii) arise out of or as a result of statements or representations (other than statements or representations contained in the Registration Statement, prospectus, Statement of Additional Information or sales literature for the Transamerica Occidental Contracts not supplied by the Trust, the Manager or persons under their control) or wrongful conduct of the Trust or the Manager or persons under their control, with respect to the sale or distribution of the Trust shares; or (iii) arise out of any untrue statement or alleged untrue statement of a material fact contained in any above written communication prepared by the Memorandum Trust or the Manager, which are not otherwise covered by subsections (or any amendment or supplement theretoi) and (ii), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statement or statements therein, in light of the circumstances under which they were made, therein not misleading, unless if such untrue statement or omission or alleged untrue statement or omission was made in reliance upon information furnished in writing to Transamerica Occidental by or on behalf of the Trust or the Manager; or (iv) arise as a result of any failure by the Manager or the Trust to provide the services and furnish the materials required to be provided or furnished by the Manager or the Trust under the terms of this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the diversification or other qualification requirements specified in Article VI of this Agreement); or (v) arise out of or result from any material breach of any representation and/or warranty made by the Manager in this Agreement or arise out of or result from any other material breach of this Agreement by the Manager or the Trust; as limited by and in conformity with information relating to the Selling Agent or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all loss, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected accordance with the written consent provisions of the Manager); and (iiiSections 8.3(b) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel8.3(c) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Acthereof.

Appears in 1 contract

Samples: Participation Agreement (Transamerica Life Insurance Co Separate Account Vl)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf with respect to the sale of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent Registrable Shares or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing (including by e-mail) to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 5(b) be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Visteon Corp)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will indemnify and hold harmless the Selling Agent Company, the Benefit Plans Investment Committee of JCPenney, JCPenney, each of the Company’s and JCPenney’s directors, each of the Company’s and JCPenney’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “JCPenney Indemnitees”), as follows: (i) from and against any and all losslosses, liabilityclaims, claimdamages, damage and expense whatsoever arising liabilities or expenses to which the JCPenney Indemnitees may become subject under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed) only to the extent such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf respecting the sale of the ManagerRegistrable Shares, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) , or any arise out of or are based upon the omission or alleged omission therefrom to state in any of them a material fact required to be stated therein or necessary in order to make the statements therein in any of them not misleading or arising out of any misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission was made in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved on behalf of the Manager, and the Manager will reimburse the JCPenney Indemnitees for any legal and other expenses as such expenses are reasonably incurred by the Selling Agent JCPenney Indemnitees in connection with investigating, defending, settling, compromising or Trading Advisor as the case may be; (ii) against paying any and all such loss, claim, damage, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or themaction; provided, however, that the Manager may, upon shall not be liable for any such untrue statement or alleged untrue statement or omission or alleged omission with respect to which the mutual agreement Manager has delivered to the Company in writing a correction before the occurrence of the transaction from which such loss was incurred. In no event shall the liability of the Manager and under this Section 1.3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (J C Penney Co Inc)

Indemnification by the Manager. The Manager agrees that to the extent permitted by law it will protect, indemnify and hold harmless LIPA, the Selling Agent Authority and each their respective representatives, trustees, directors, officers, employees and subcontractors (as applicable in the circumstances), (the "LIPA Indemnified Parties") from and against (and pay the full amount of) any Loss-and-Expense and will defend the LIPA Indemnified Parties in any suit, including appeals, for personal injury to, or death of, any person, if any, who controls the Selling Agent within the meaning of Section 15 of the 1933 Act, as follows: (i) against any and all loss, liability, claim, or loss or damage and expense whatsoever arising out of (A) any breach by the Manager of its representations and warranties or failure of the Manager to comply with any of its agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment thereto) or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein not misleading or property arising out of any untrue statement matter for which the Manager is responsible under Section 6.11 hereof. The Manager shall not, however, be required to reimburse or alleged untrue statement of a material fact contained in the Memorandum (or indemnify any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating to the Selling Agent or a Trading Advisor or furnished or approved by the Selling Agent or Trading Advisor as the case may be; (ii) against LIPA Indemnified Party for any and all loss, liability, claim, damage and expense whatsoever with respect to each Company Loss-and-Expense to the extent any such Loss-and-Expense is due to (a) any matter for which LIPA is responsible under Section 6.11 hereof, (b) the negligence or other wrongful conduct of any LIPA Indemnified Party, (c) any Force Majeure event, (d) any act or omission of any LIPA Indemnified Party judicially determined to be responsible for or contributing to the Loss-and-Expense, or (e) any matter for which the risk has been specifically allocated to LIPA hereunder. A LIPA Indemnified Party shall promptly notify the Manager of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or assertion of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement against it for which it is entitled to be subject indemnified hereunder, shall give the Manager the opportunity to indemnity hereunder only if effected with defend such claim, and shall not settle the written consent claim without the approval of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own expense choosing that is reasonably acceptable to the LIPA Indemnified Parties; provided, however, that, in the case of any such settlement, the Manager shall obtain written release of all liability of the LIPA Indemnified Parties, in form and substance reasonably acceptable to the LIPA Indemnified Parties. Notwithstanding the foregoing, each LIPA Indemnified Party shall have the right to employ its own separate counsel in connection with, and to participate in (but, except as provided below, not control) the defense orof, if it so elects within a reasonable time after receipt such claim, but the fees and expenses of such notice, counsel incurred after notice to the Manager of its assumption of the defense thereof shall be at the expense of such LIPA Indemnified Party unless: (i) the employment of counsel by such LIPA Indemnified Party has been authorized by the Manager; (ii) counsel to such LIPA Indemnified Party shall have reasonably concluded that there may be a conflict on any significant issue between the Manager and such LIPA Indemnified Party in the conduct of the defense of such claim; or (iii) the Manager shall not in fact have employed counsel reasonably acceptable to the LIPA Indemnified Party to assume the defense of that portion of any suit so brought relating to such claim within twenty (20) days following the Manager's indemnification obligations hereunder, which defense shall be conducted receipt by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume of the defense notice from the LIPA Indemnified Party regarding the assertion of any such suit and retain such counselthe applicable claim, the indemnified party or parties, defendant or defendants in the suit, shall bear each case the fees and expenses of any additional counsel thereafter retained by it or themfor such LIPA Indemnified Party shall be at the expense of the Manager; provided, however, that that, with respect to clauses (ii) and (iii) of this sentence, the Manager may, upon the mutual agreement of the Manager and the indemnified party or parties, bear shall not be obligated to pay the fees and expenses of additional more than one law firm, plus local counsel retained by an indemnified party if necessary in each relevant jurisdiction, for all such LIPA Indemnified Parties with respect to any claims arising out of the named parties in same events or facts or the same series of events or facts. The Manager shall not be entitled, without the consent of such suit include both LIPA Indemnified Party, to assume or control the defense of any claim as to which counsel to such LIPA Indemnified Party shall have reasonably made the conclusion that there may be a conflict on any significant issue between the Manager and such LIPA Indemnified Party in the indemnified party and representation conduct of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of such claim as set forth in clause (ii) above, provided that the portion of foregoing limitation shall apply only with respect to those issues for which there may be such a suit relating to conflict. These indemnification provisions are for the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent protection of the indemnified partyLIPA Indemnified Parties only and shall not establish, effect of themselves, any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suitto third parties. The Manager agrees to notify the Selling Agent within a reasonable time provisions of the assertion this subsection 9.3(A) shall survive termination of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 Actthis Agreement.

Appears in 1 contract

Samples: Management Services Agreement (Keyspan Corp)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Retirement Funds Investment Committee of OfficeMax, each of the Company’s directors, employees, and agents, and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “OfficeMax Indemnitees”), as follows: (i) from and against any and all losslosses, liabilityclaims, claimdamages, damage and expense whatsoever arising liabilities or expenses to which the OfficeMax Indemnittees may become subject under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed) only to the extent such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (A) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf respecting the sale of the ManagerRegistrable Shares, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) , or any arise out of or are based upon the omission or alleged omission therefrom to state in any of them a material fact required to be stated therein or necessary in order to make the statements therein in any of them not misleading or arising out of any misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission was made in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against will reimburse the OfficeMax Indemnitees for any legal and all other expenses as such expenses are reasonably incurred by the OfficeMax Indemnitees in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or themaction; provided, however, that the Manager may, upon shall not be liable for any such untrue statement or alleged untrue statement or omission or alleged omission with respect to which the mutual agreement Manager has delivered to the Company in writing a correction before the occurrence of the transaction from which such loss was incurred. In no event shall the liability of the Manager and under this Section 1.3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Officemax Inc)

Indemnification by the Manager. The Manager agrees to indemnify and hold harmless the Selling Agent Company, its directors, its officers who signed the Registration Statement and each personPerson, if any, who controls the Selling Agent Company within the meaning of Section 15 of the 1933 Securities Act or Section 20 of the Exchange Act, as follows: (i) from and against any losses, claims, damages or liabilities, and all lossany action or proceeding in respect thereof, liabilityto which the Company, claimits directors, damage such officers and expense whatsoever arising any such controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as losses, claims, damages or liabilities (or action or proceeding in respect thereof) arise out of (A) any breach by the Manager of its representations and warranties of, or failure of the Manager to comply with any of its agreements contained herein or any actare based upon, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (B) any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (Registration Statement, the Prospectus or any other prospectus relating to the Common Shares, or any amendment or supplement thereto) , or any preliminary prospectus, or arise out of, or are based upon, any omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus or any other prospectus relating to the Common Shares, or any amendment or supplement thereto or any preliminary prospectus, in light of the circumstances in which they were made) not misleading or arising out of any in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement of a material fact contained in the Memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made therein in reliance upon and in conformity with written information relating related to the Selling Agent Manager or a Trading Advisor or its plan of distribution furnished or approved to the Company by the Selling Agent or Trading Advisor as the case may be; (ii) against any and all lossManager expressly for use therein, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement it being understood that such information consists solely of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event statements that the Manager elects to assume may suspend the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement offering of the Manager and the indemnified party or parties, bear the fees and expenses of additional counsel retained by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available Common Shares at any time upon proper notice to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActCompany.

Appears in 1 contract

Samples: Sales Agency Agreement (Venoco, Inc.)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will (i) indemnify and hold harmless the Selling Agent Company, the Committee, each director of the Company, each member of the Committee, each of the Company’s officers who signed the Registration Statement and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all lossLosses to which any Company Indemnitee may become subject under the Securities Act, liabilitythe Exchange Act or any other federal or state law or regulation, claimor at common law or otherwise (including in settlement of any litigation, damage and expense whatsoever arising if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed), only to the extent such Losses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf of the Manager, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus or any amendment or supplement thereto) , or any the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained (in the Memorandum (case of the Prospectus or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, ) not misleading, unless ; provided that the Manager will be liable in any such case only to the extent that any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission was made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved by on behalf of the Selling Agent or Trading Advisor as the case may be; Manager, and (ii) against reimburse such Company Indemnitee for any reasonable legal fees and all lossother reasonable out-of-pocket expenses as such expenses are incurred by such Company Indemnitee in connection with investigating, liabilitydefending, claimsettling, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, compromising or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon paying any such untrue statement Loss or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) aboveaction. In no case event shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or them; provided, however, that the Manager may, upon the mutual agreement of the Manager and under this Section 3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Magnetek, Inc.)

Indemnification by the Manager. The To the extent permitted by applicable law, the Manager agrees to will indemnify and hold harmless the Selling Agent Company, Hercules, the Committee, each of the Company’s directors, each of the Company’s officers who signed the Registration Statement, each of the Company’s employees and each person, if any, who controls the Selling Agent Company within the meaning of either Section 15 of the 1933 ActSecurities Act or Section 20 of the Exchange Act (the “Company Indemnitees”), as follows: (i) from and against any and all losslosses, liabilityclaims, claimdamages, damage and expense whatsoever arising liabilities or expenses to which the Company Indemnitees may become subject under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Manager, which consent shall not be unreasonably withheld or delayed) only to the extent such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (Ai) any breach by failure on the Manager of its representations and warranties or failure part of the Manager to comply with any of its the covenants and agreements contained herein or any act, omission, activity or conduct undertaken in connection with this Agreement by or on behalf respecting the sale of the ManagerRegistrable Shares, except to the extent such loss results from the negligence or willful misconduct of the Selling Agent or (Bii) any untrue statement or alleged untrue statement of a any material fact contained in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) , or any arise out of or are based upon the omission or alleged omission therefrom to state in any of them a material fact required to be stated therein or necessary in order to make the statements therein in any of them not misleading or arising out of any misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission was made in the Memorandum (Registration Statement, the Prospectus, or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with information relating furnished in writing to the Selling Agent Company by or a Trading Advisor or furnished or approved on behalf of the Manager, and the Manager will reimburse the Company Indemnitees for any legal and other expenses as such expenses are reasonably incurred by the Selling Agent Company Indemnitees in connection with investigating, defending, settling, compromising or Trading Advisor as the case may be; (ii) against paying any and all such loss, claim, damage, liability, claim, damage and expense whatsoever with respect to each Company to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (any settlement to be subject to indemnity hereunder only if effected with the written consent of the Manager); and (iii) against any and all expense whatsoever with respect to each Company (including the fees and disbursements of counsel) reasonably incurred in investigating, preparing or defending against litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clauses (i) or (ii) above. In no case shall the Manager be liable under this indemnity agreement with respect to any claim made against any indemnified party unless the Manager shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure to so notify the Manager shall not relieve the Manager from any liability which it may have otherwise than on account of this indemnity agreement. The Manager shall be entitled to participate at its own expense in the defense or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of that portion of any suit so brought relating to the Manager's indemnification obligations hereunder, which defense shall be conducted by counsel chosen by it and satisfactory to the indemnified party or parties, defendant or defendants therein. In the event that the Manager elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel thereafter retained by it or themaction; provided, however, that the Manager may, upon shall not be liable for any such untrue statement or alleged untrue statement or omission or alleged omission with respect to which the mutual agreement Manager has delivered to the Company in writing a correction before the occurrence of the transaction from which such loss was incurred. In no event shall the liability of the Manager and under this Section 1.3 be greater than the indemnified party or parties, bear the aggregate fees and expenses of additional counsel retained received by an indemnified party if the named parties in such suit include both the Manager and the indemnified party and representation of both the Manager and the indemnified party would be inappropriate due to actual or potential differing interests between them or there are defenses available pursuant to the indemnified party that are or would not be available to the Manager. In the event the Manager assumes the defense of the portion of a suit relating to the Manager's indemnification obligations hereunder, the Manager will not, without the prior written consent of the indemnified party, effect any settlement of such suit, unless such settlement includes a release of the indemnified party from all liability or claims that are the subject of such suit. The Manager agrees to notify the Selling Agent within a reasonable time of the assertion of any claim in connection with the sale of the Units against it or any of its officers or directors or any person who controls the Manager within the meaning of Section 15 of the 1933 ActInvestment Management Agreement.

Appears in 1 contract

Samples: Registration Rights Agreement (Ashland Inc.)