Indemnifications. The indemnifications that follow in the next two Sections shall only apply to the extent the indemnified party is not covered and indemnified by insurance. Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord. Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenant.
Appears in 1 contract
Samples: Unitary Lease (Levitz Furniture Inc)
Indemnifications. (a) The indemnifications that follow Company will indemnify and hold harmless the Underwriter against any losses, claims, damages or liabilities, joint or several, to which the Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the next two Sections Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact or necessary to make the statements therein not misleading, and will reimburse the Underwriter for any legal or other expenses reasonably incurred by the Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall only apply not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or behalf of the Underwriter or any Selling Stockholder expressly for use therein.
(b) Each Selling Stockholder, severally and not jointly, agrees to indemnify and hold harmless the Company and the Underwriter to the same extent as the foregoing indemnity from the Company to the Underwriter, but only with reference to written information furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion in the documents referred to in the foregoing indemnity; provided, however, that the Selling Stockholders will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission from any of the documents referred to in the foregoing indemnity in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for use therein.
(c) The Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter expressly for use therein; and will reimburse the Company and each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided that, the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (which counsel may at the option of the indemnifying party be counsel to the indemnifying party unless (1) the indemnified party has reasonably concluded (based upon advice of counsel to the indemnified party) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party or (2) a conflict or potential conflict exists (based upon advice of counsel to the indemnified party) between the indemnified party and the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. If the indemnifying party does not assume the defense of such action, it is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one separate firm of local attorneys in each such jurisdiction when reasonably necessary but not to include two firms in the same jurisdiction) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of an action or claim for monetary damages effected without its consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party shall indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence include a statement as to, or willful acts of Landlord an admission of, fault, culpability or its agentsa failure to act, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, by the Underwriter and by the Selling Stockholders from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, of the Underwriter and of the Selling Stockholders in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and/or by the Selling Stockholders on the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriter. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Underwriter or the Selling Stockholders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Underwriter and the Selling Stockholders agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person or persons, firm or firms, corporation or corporations arising from conduct or management guilty of or fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any work or thing whatsoever done person who was not guilty of such fraudulent misrepresentation.
(f) The obligations of the Company under this Section 8 shall be in or about addition to any liability which the Demised Premises Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Underwriter within the meaning of the Act; and the Common Areas so long obligations of the Underwriter under this Section 8 shall be in addition to any liability which the Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act. The obligations of each Selling Stockholder under this Section 8 shall be in addition to any liability which such Selling Stockholder may otherwise have.
(g) The liability of each Selling Stockholder under (i) such Selling Stockholder’s representations and warranties contained in Section 1 and (ii) under this Section 8, in each case shall be limited to an amount equal to the net proceeds received by such Selling Stockholder from the Shares sold by the Selling Stockholder to the Underwriter. The Company and each such Selling Stockholder may agree, as Tenant is between themselves and without limiting the Responsible Partyrights of the Underwriter under this Agreement, as to the respective amounts of such liability for which they each shall be responsible. The Underwriter acknowledges and will further indemnify and save Landlord harmless against and from any and all claims agrees that the statements relating to each Selling Stockholder under the caption “Selling Stockholders” in the Prospectus constitute the only information furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any person or personsPreliminary Prospectus, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, Prospectus or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease Selling Stockholder Free Writing Prospectus or any other agreement between Landlord and Tenant, amendments or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlordsupplements thereto.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenant.
Appears in 1 contract
Samples: Underwriting Agreement (TRW Automotive Holdings Corp)
Indemnifications. (a) The indemnifications that follow in Company agrees to indemnify and hold harmless each of you and each person who controls any of you within the next two Sections shall only apply meaning of Section 15 of the Act against any and all losses, claims, damages or liabilities, joint or several, to which you and they or any of you or them may become subject under the Act, the Exchange Act or any other statute or common law, and to reimburse each of you and each such controlling person for any legal or other expenses (includ- ing, to the extent hereinafter provided, reasonable counsel fees) incurred by you or them in connection with investigating any such losses, claims, damages or liabili- ties or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the indemnified party is Registration Statement or Prospectus as amended or supplemented (if any amendments or supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by misleading; provided, however, that the negligence indemnity agreement contained in this subsection (a) shall not apply to any such losses, claims, damages, liabilities, expenses or willful acts of Landlord actions arising out of, or its agentsbased upon, employees any such untrue statement or subtenants (other than Tenant alleged untrue statement, or any one claims bysuch omission or alleged omission, through if such statement or under Tenant, including any tenant occupying pursuant omission was made in reliance upon written information furnished to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims the Company by or on behalf of any person of you specifically for use in connection with the preparation of the Registration Statement, the Prospectus or any amendment or supplement to either thereof; and provided, further, that the indemnity agreement contained in this paragraph shall not inure to the benefit of any of you (or of any of your controlling persons) on account of any losses, firm claims, damages, liabilities, expenses or firms, corporation or corporations actions arising from conduct the sale of any of the Securities to any person if a copy of the Prospectus, as amended or management supplemented (if any amendments or supplements thereto shall have been furnished), excluding any document incorporated by reference therein, shall not have been sent or given to such person with or prior to the written confirmation of or from any work or thing whatsoever done the sale involved, unless such failure is the result of non- compliance by the Company with Section 5(a) hereof. The indemnity agreement of the Company contained in or about the Demised Premises this Section 8(a) and the Common Areas so long as Tenant is representations and warranties of the Responsible PartyCompany contained in Section 1 hereof shall remain operative and in full force and effect, and will further indemnify and save Landlord harmless against and from regardless of any and all claims investigation made by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, you or any streetsuch controlling per- son, curb and shall survive the delivery of the Securities. The indemnity agreement of the Company contained in this Section 8(a) shall be in addition to any liability which the Company may otherwise have to an indemnified party hereunder.
(b) Each of you, severally, agrees to indemnify and hold harmless the Company, its directors, each of its officers who shall have signed the Registration Statement and each person who controls the Company within the meaning of Section 15 of the Act against any and all losses, claims, damages or sidewalk adjoining liabilities, joint or several, to which they or any of them may become subject under the Demised Premises or Act, the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease Exchange Act or any other agreement between Landlord and Tenant, statute or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Partycommon law, and from and against all coststo reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any action, insofar as such losses, claims, damages, liabilities, expenses and liabilities incurred about or actions arise out of or are based upon any such claim untrue statement or action or proceeding brought thereon; and alleged untrue state- ment of a material fact contained in the event Registration State- ment or Prospectus as amended or supplemented (if any action amendments or proceeding supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be brought against Landlordstated therein or necessary to make the statements therein not misleading, Tenant agrees if such statement or omission was made in reliance upon written information furnished to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims Company by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done you specifically for use in or about Landlord's Buildings and so long as Landlord is connection with the Responsible Partyprepa- ration of the Registration Statement, the Common AreasProspectus or any amendment or supplement to either thereof. Your respective indemnity agreements contained in this Section 8(b) and the representations and warranties of each of you which shall have signed this Agreement contained in Section 12 hereof shall remain operative and in full force and effect, and will further indemnify and save Tenant harmless against and from regardless of any and all claims investigation made by or on behalf of the Company or any person such director, officer or personscontrolling person, firm or firmsand shall survive the delivery of the Securities. The indemnity agreement of each of you contained in this Section 8(b) shall be in addition to any liability which you may otherwise have to an indemnified party hereunder.
(c) Each of the Company and you, corporation or corporationsseverally, arising during agrees that, upon the term receipt of this Lease from any condition notice of the commencement of any buildingaction against it, structure any of its directors or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areasofficers, or any streetperson controlling it as aforesaid, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or in respect of which indemnity may be sought on account of any passageways indemnity agreement contained herein, it will promptly give a notice of the commencement thereof to the party or spaces in Landlord's Buildingparties against whom indemnity shall be sought hereunder, but the omission so to notify such indemnifying party or arising parties of any such action shall not relieve such indemnifying party or parties from any breach liability which it or default they may have to the indemnified party otherwise than on the part account of Landlord such indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party shall be entitled to participate at its own expense in the performance of any covenant or agreement on the part of Landlord defense or, if it so elects, to be performed pursuant to the terms of this Lease or assume (in conjunction with any other agreement between Landlord and Tenantindemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or arising from parties. If the indemnifying party shall elect to assume the defense of such action, any act of negligence of Landlord, indemnified party or any of its agents, contractors, servants, employees, sublessees parties who shall be defendant or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant de- fendants in such action shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel retained by it or proceeding them shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party or parties or (ii) counsel reasonably chosen by the indemnifying party or parties as aforesaid shall not be satisfactory to Tenantthe indemnified party or parties or shall for any reason be unable to act for or continue to act for such indemnified party or parties; provided, however, that in any case or cases to which the foregoing clause (ii) shall apply, the indemnifying party or parties shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all such indemnified parties, which firm shall be chosen by the indemnified party or parties and satisfactory to the indemnifying party or parties. If the indemnifying party shall elect not to assume the defense of such action, such indemnifying party will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in Sections 8(a) or (b) hereof shall be due in accordance with its terms but for any reason shall be unavailable or insufficient to hold any indemnified party thereunder harmless in respect of any losses, claims, damages or liabilities referred to therein, the Company and each of you severally shall contribute to the aggregate losses, claims, damages and liabilities to which the Company and one or more of you may be subject, as a result of such losses, claims, damages or liabilities, in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and each of you on the other in con- nection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other equitable considerations, including, with respect only to any losses, claims, damages or liabilities referred to in Section 8(a) hereof, relative benefit. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or you, on the other, and the parties' relative intent, knowledge and access to information and opportunity to correct or prevent such statement or omission. The relative benefits received by the Company on the one hand and you on the other shall be deemed to be in the same pro- portion as the total net proceeds from the offering of the Securities (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by you with respect to the offering of the Securities. Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Company and you agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined (i) by any method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d), or (ii) with respect only to any losses, claims, damages or liabilities referred to in Section 8(a) hereof, by pro rata allocation (even if you were treated as one entity for such purpose). The amount paid or payable by a party entitled to contribution as a result of the losses, claims, damages or liabilities referred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such party in connection with investigating or defending any such action or claim. For purposes of this Section 8(d), each person, if any, who controls any of you within the meaning of Section 15 of the Act shall have the same rights to contribution as you, and each director and officer of the Company who shall have signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act shall have the same rights to contribution as the Company, subject, in each case, to the fourth sentence of this Section 8(d).
Appears in 1 contract
Indemnifications. The indemnifications that follow in the next two Sections shall only apply to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or a) (i) In connection with any one claims by, through or under Tenant, including any tenant occupying Registration Statement filed pursuant to a Collateral LeaseSection 5.1 or 5.2 hereof, the Company shall indemnify and hold harmless each Stockholder (and its respective employees, affiliates, trustees, partners, officers and directors) whose shares are being registered and any agent or investment advisor thereof, each underwriter who may purchase from or sell any Shares for such Stockholders and their agents and each person who controls the Stockholders or underwriter, within the meaning of the Securities Act (and its respective employees, affiliates, trustees, partners, offices and directors), Tenant agrees to defend, indemnify from and save harmless Landlord against and from any and all claims by or on behalf of any person or personslosses, firm or firmsclaims, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel feesdamages, expenses and liabilities incurred about caused by or arising out of any such claim untrue statement or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord alleged untrue statement of a material fact contained in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employeesRegistration Statement, Landlord agrees to defendprospectus, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areaspreliminary prospectus, or any street, curb amendment or sidewalk adjoining Landlord's Building or supplement to any of the Common Areas so long as Landlord is the Responsible Partyforegoing, or in any related state securities or blue sky applications or other instruments or caused by or arising out of any passageways omission or spaces alleged omission to state in Landlord's Buildingsuch Registration Statement, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenantprospectus, or arising from any act of negligence of Landlordpreliminary prospectus, or any amendment or supplement to any of its agents, contractors, servants, employees, sublessees or licenseesthe foregoing, or arising from any accidentrelated state securities or blue sky applications or other instruments any material fact required to be stated therein or necessary to make the statements which are made not misleading, injury except insofar as such losses, claims, damages, expenses or damage whatsoever liabilities are caused by or arise out of any such untrue statement or by any such omission that was made in reliance upon and in strict conformity with information that was furnished in writing to the Company by such Stockholder (or its officers or directors), underwriter or controlling person expressly for use in such Registration Statement or any personrelated state securities or blue sky applications or other instruments and was used in accordance with such writing, firm and the Company will pay to each such indemnified party, as incurred, any legal or corporation occurring during other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense or liability; provided, however, that the term indemnity agreement contained in this Section 5.8(a)(i) shall not apply to amounts paid in settlement of this Leaseany such loss, inclaim, on damage, liability or about Landlord's Building or occurring in action if such settlement is effected without the Common Area consent of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding Company (which consent shall not be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenantunreasonably withheld).
Appears in 1 contract
Indemnifications. The indemnifications Except if caused directly by the gross negligence of the Lessor, the Lessor shall not be liable nor responsible in any way for any injury of any nature whatsoever that follow may be suffered or sustained by the Lessee or any employee, agent or customer of the Lessee or any other person who may be upon the Leased Premises or for any loss of or damages to any property belonging to the Lessee or to its employees or to any other person while such property is on the Leased Premises and in particular (but without limiting the generality of the foregoing) the Lessor shall not be liable for any damage or damages of any nature whatsoever to any such property caused by the failure by reason of a breakdown or other cause, to supply adequate drainage, snow or ice removal, or by reason of the interruption of any public utility or services or in the next two Sections event of steam, water, rain or snow which drainage pipes or plumbing works of the same, or from any other place or quarter or for any damage caused by anything done or omitted by any lessee, but the Lessor shall only apply use all reasonable diligence to remedy such condition, failure or interruption of service when not directly or indirectly attributable to the extent Lessee, after notice of same, when it is within its power and obligation so to do. Nor shall the indemnified party is not covered and indemnified by insurance.
Section 13.01Lessee be entitled to any abatement of rental in respect of any such condition, failure or interruption of service. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, The Lessee will indemnify and save harmless Landlord against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and Lessor from and against all costsfines, reasonable counsel feesliability, expenses damages, suits, claims, demands and liabilities incurred about actions of any such claim kind or action nature which the Lessor shall or proceeding brought thereon; and in the event may become liable for or suffer by reason of any action breach, violation or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely non-performance by the negligence Lessee of any covenant, term or willful acts provision hereof or by reason of Tenant any injury (including death resulting at any time therefrom) or its agents damage to property occasioned to or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims suffered by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is persons including the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims Lessor by or on behalf reason of any person such breach, violation or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, non-performance or of any passageways or spaces in Landlord's Buildingwrongful act, or arising from any breach neglect or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, Lessee or any of its employees, officers, agents, contractors, servants, employees, sublessees or licenseessuppliers, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenantinvitees.
Appears in 1 contract
Samples: Lease Agreement (Griffith Micro Science International Inc)
Indemnifications. (a) The indemnifications that follow in Company agrees to indemnify and hold harmless each of you and each person who controls any of you within the next two Sections shall only apply meaning of Section 15 of the Act against any and all losses, claims, damages or liabilities, joint or several, to which you and they or any of you or them may become subject under the Act, the Exchange Act or any other statute or common law, and to reimburse each of you and each such controlling person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred by you or them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the indemnified party is Registration Statement, any preliminary prospectus or the Prospectus as amended or supplemented (if any amendments or supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by misleading; provided, however, that the negligence indemnity agreement contained in this subsection (a) shall not apply to any such losses, claims, damages, liabilities, expenses or willful acts of Landlord actions arising out of, or its agentsbased upon, employees any such untrue statement or subtenants (other than Tenant alleged untrue statement, or any one claims bysuch omission or alleged omission, through if such statement or under Tenant, including any tenant occupying pursuant omission was made in reliance upon written information furnished to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims the Company by or on behalf of any person of you specifically for use in connection with the preparation of the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of them; and provided, further, that the indemnity agreement contained in this paragraph shall not inure to the benefit of any of you (or of any of your controlling persons) on account of any losses, firm claims, damages, liabilities, expenses or firms, corporation or corporations actions arising from conduct the sale of any of the Securities to any person (i) if a copy of the Prospectus, as amended or management supplemented (if any amendments or supplements thereto shall have been furnished), excluding any document incorporated by reference therein, shall not have been sent or given to such person with or prior to the written confirmation of the sale involved, unless such failure is the result of non-compliance by the Company with Section 5(a) hereof or from (ii) as to any work preliminary prospectus, if a copy of the Prospectus, as the same may be amended or thing whatsoever done in supplemented (if any amendments or about supplements thereto shall have been furnished), excluding any document incorporated by reference therein, shall not have been sent or given to such person within the Demised Premises time required by the Securities Act, and the Common Areas so long as Tenant untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary prospectus was corrected in the Prospectus, unless such failure to send or give such copy of the Prospectus is the Responsible Partyresult of non-compliance by the Company with Section 5(a) hereof. The indemnity agreement of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 1 hereof shall remain operative and in full force and effect, and will further indemnify and save Landlord harmless against and from regardless of any and all claims investigation made by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, you or any streetsuch controlling person, curb and shall survive the delivery of the Securities. The indemnity agreement of the Company contained in this Section 8(a) shall be in addition to any liability which the Company may otherwise have to an indemnified party hereunder.
(b) Each of you, severally, agrees to indemnify and hold harmless the Company, its directors, each of its officers who shall have signed the Registration Statement and each person who controls the Company within the meaning of Section 15 of the Act against any and all losses, claims, damages or sidewalk adjoining liabilities, joint or several, to which they or any of them may become subject under the Demised Premises or Act, the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease Exchange Act or any other agreement between Landlord and Tenant, statute or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Partycommon law, and from and against all coststo reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any action, insofar as such losses, claims, damages, liabilities, expenses and liabilities incurred about or actions arise out of or are based upon any such claim untrue statement or action or proceeding brought thereon; and alleged untrue statement of a material fact contained in the event Registration Statement or Prospectus as amended or supplemented (if any action amendments or proceeding supplements thereto shall have been furnished) or the omission or alleged omission to state therein a material fact required to be brought against Landlordstated therein or necessary to make the statements therein not misleading, Tenant agrees if such statement or omission was made in reliance upon written information furnished to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims Company by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done you specifically for use in or about Landlord's Buildings and so long as Landlord is connection with the Responsible Partypreparation of the Registration Statement, the Common AreasProspectus or any amendment or supplement to either thereof. Your respective indemnity agreements contained in this Section 8(b) and the representations and warranties of each of you which shall have signed this Agreement contained in Section 12 hereof shall remain operative and in full force and effect, and will further indemnify and save Tenant harmless against and from regardless of any and all claims investigation made by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, Company or any streetsuch director, curb officer or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any controlling person, firm or corporation occurring during and shall survive the term delivery of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenant.the
Appears in 1 contract
Indemnifications. (a) The indemnifications that follow Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the next two Sections Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall only apply not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through you expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided that, the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (which counsel may at the option of the indemnifying party be counsel to the indemnifying party unless (1) the indemnified party has reasonably concluded (based upon advice of counsel to the indemnified party) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party or (2) a conflict or potential conflict exists (based upon advice of counsel to the indemnified party) between the indemnified party and the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. If the indemnifying party does not assume the defense of such action, it is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to one separate firm of local attorneys in each such jurisdiction when reasonably necessary but not to include two firms in the same jurisdiction) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of an action or claim for monetary damages effected without its consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party shall indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence include a statement as to, or willful acts of Landlord an admission of, fault, culpability or its agentsa failure to act, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims by or on behalf of any person indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or personsinsufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, firm claims, damages or firmsliabilities (or actions in respect thereof) referred to therein, corporation then each indemnifying party shall contribute to the amount paid or corporations arising from conduct payable by such indemnified party as a result of such losses, claims, damages or management of liabilities (or from any work or thing whatsoever done actions in or about respect thereof) in such proportion as is appropriate to reflect the Demised Premises relative benefits received by the Company on the one hand and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement Underwriters on the Demised Premises other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the Common Areas so long as Tenant is omission or alleged omission to state a material fact relates to information supplied by the Responsible Party, or any street, curb or sidewalk adjoining Company on the Demised Premises one hand or the Common Areas so long Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as Tenant is the Responsible Party, one entity for such purpose) or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or by any other agreement between Landlord and Tenant, or arising from any act method of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area allocation which does not take account of the Shopping Centers so long equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as Tenant is a result of the Responsible Partylosses, and from and against all costsclaims, reasonable counsel fees, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses and liabilities reasonably incurred about by such indemnified party in connection with investigating or defending any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by counsel reasonably satisfactory which the total price at which the Securities underwritten by it and distributed to Landlordthe public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done 9 shall be in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, firm or corporation occurring during if any, who controls any Underwriter within the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area meaning of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereonAct; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the event any action or proceeding be brought against Tenantrespective Underwriters may otherwise have and shall extend, Landlord agrees upon the same terms and conditions, to defend Tenant in such action or proceeding by counsel reasonably satisfactory each officer and director of the Company and to Tenanteach person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Samples: Underwriting Agreement (TRW Automotive Holdings Corp)
Indemnifications. (a) The indemnifications that follow Company, or, in the next two Sections case of Offered Debt Securities, the Issuers, jointly and severally, will indemnify and hold harmless each Underwriter, their respective officers and employees and each person, if any, who controls any Underwriter within the meaning of the Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Offered Securities), to which that Underwriter, officer, employee or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto, or the omission or alleged omission to state in the Prospectus or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall only apply reimburse each Underwriter, and each such officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim damage, liability or action as such expenses are incurred; provided, however, that the Company, or, in the case of Offered Debt Securities, the Issuers, shall not be liable in any such case to the extent that any such loss, claim, damage, liability, or action arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by Registration Statement or the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant Prospectus or any one claims bysuch amendment or supplement in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company, through or under Tenantor, including in the case of Offered Debt Securities, the Issuers, by any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims Representatives by or on behalf of any Underwriter specifically for inclusion therein; provided further that the Company, or, in the case of Offered Debt Securities, the Issuers, shall not be liable to any Underwriter under the indemnity agreement in this paragraph 6(a) with respect to the Prospectus to the extent that any such loss, claim, damage or liability of such Underwriters results from the fact that such Underwriter sold Offered Securities to a person as to whom there was not sent or personsgiven, firm at or firmsprior to written confirmation of such sale, corporation a copy of the Prospectus as then amended or corporations arising from conduct or management supplemented if the Company, or, in the case of or from any work or thing whatsoever done Offered Debt Securities, the Issuers, had previously furnished copies thereof in or about the Demised Premises quantity requested and in a timely manner in accordance with Section 3(c) hereof to such Underwriter and the Common Areas so long loss, claim, damage or liability of such Underwriter results from an untrue statement or omission of a material fact contained in the Registration Statement and corrected in the Prospectus as Tenant amended or supplemented.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, or, in the case of Offered Debt Securities, the Issuers, its or their officers who sign the Registration Statement, each of its or their directors (including any person who, with his or her consent, is named in the Responsible PartyRegistration Statement or the Prospectus as about to become a director of the Company, or, in the case of Offered Debt Securities, the Issuers), and will further indemnify each person, if any, who controls the Company, or, in the case of Offered Debt Securities, the Issuers, within the meaning of the Act, from and save Landlord harmless against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company, or, in the case of Offered Debt Securities, the Issuers, or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state in the Registration Statement or the Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and from any and all claims in conformity with written information concerning such Underwriter furnished to the Company, or, in the case of Offered Debt Securities, the Issuers, through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, and shall reimburse the Company, or, in the case of Offered Debt Securities, the Issuers, and any such director, officer or controlling person for any legal or personsother expenses reasonably incurred by the Company, firm or firmsor, corporation or corporationsin the case of Offered Debt Securities, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible PartyIssuers, or any streetsuch director, curb officer or sidewalk adjoining controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Demised Premises or Company, or, in the Common Areas so long as Tenant is case of Offered Debt Securities, the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of TenantIssuers, or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of its agentsnotice of any claim or the commencement of any action, contractorsthe indemnified party shall, servantsif a claim in respect thereof is to be made against the indemnifying party under such subsection, employeesnotify the indemnifying party in writing of the claim or the commencement thereof; provided, sublessees or licenseeshowever, or arising that the failure to notify the indemnifying party shall not relieve it from any accident, injury or damage whatsoever caused liability which it may have under this section except to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Partyextent it has been materially prejudiced by such failure, and provided further, that the failure to notify the indemnifying party shall not relieve it from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any liability which it may have to an indemnified party other wise than under such subsection. In case any such claim or action or proceeding brought thereon; and in the event any action or proceeding shall be brought against Landlordan indemnified party, Tenant agrees and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to defend Landlord in such action or proceeding by participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof, with counsel reasonably satisfactory to Landlordthe indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under such subsection for any legal or other expenses, subsequently incurred by the indemnified party, in connection with the defense thereof; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have in good faith reasonably concluded that there may be defenses available to it which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party may be deemed to conflict with the interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred; provided further that in no event shall the foregoing proviso require the indemnifying party to bear the fees and expenses of more than one separate counsel, in addition to local counsel, for each of the following classes of parties hereto: (i) the Representatives and those other Underwriters and their respective officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this Section 6 and (ii) the Company and its subsidiaries, or, in the case of Offered Debt Securities, the Issuers. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment to the extent provided in this Section 6.
(d) If the indemnification provided for in this Section 13.02. Excepting if caused solely 6 shall for any reason be unavail- able to or insufficient (other than by reason of the negligence exceptions provided therein) to hold harmless an indemnified party under subsection (a) or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf (b) above in respect of any person loss, claim, damage or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areasliability, or any streetaction in respect thereof, curb referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or sidewalk adjoining Landlord's Building payable by such indemnified party as a result of such loss, claim, damage or liability or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by each party to the Terms Agreement from the offering of the Offered Securities or (ii) if the allocation provided by the clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each party to the Terms Agreement with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, or, in the case of Offered Debt Securities, the Issuers, and the Underwriters with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Offered Securities purchased under this Agreement (before deducting expenses) received by the Company, or, in the case of Offered Debt Securities, the Issuers, and the total underwriting discounts and commissions received by the Underwriters with respect to the Offered Securities purchased under the Terms Agreement as set forth in the table on the cover page of the Prospectus, bear to the sum of the total proceeds from the sale of the Offered Securities (before deducting expenses) in the offering. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the Common Areas so long as Landlord is omission or alleged omission to state a material fact relates to information supplied by the Responsible PartyCompany, or, in the case of Offered Debt Securities, the Issuers, or of any passageways the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or spaces in Landlord's Buildingprevent such statement or omission. The Company, or arising from any breach or default on the part of Landlord or, in the performance case of any covenant or agreement on Offered Debt Securities, the part of Landlord to Issuers, and the Underwriters agree that it would not be performed just and equitable if contributions pursuant to the terms of this Lease subsection (d) were determined by pro rata allocation or by any other agreement between Landlord and Tenant, or arising from any act method of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area allocation which does not take into account of the Shopping Centers so long equitable considerations referred to herein. The amount paid or payable by an indemnified party as Landlord is a result of the Responsible Partyloss, and from and against all costsclaim, reasonable counsel fees, expenses and liabilities incurred about any such claim damage or liability or action in respect thereof, referred to above in this subsection (d) shall be deemed to include any legal or proceeding brought thereon; and other expenses reasonably incurred by such indemnified party in the event connection with investigating or defending any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by counsel reasonably satisfactory which the total price at which the Offered Securities underwritten by it and distributed to Tenantthe public was offered to the public, exceeds the amount of any damages which such Underwriter, as the case may be, has otherwise been required to pay or become liable to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) As used herein, the phrase "actual knowledge" means, with respect to any natural person, the actual knowledge of such person and, with respect to any other person, the actual knowledge of any natural person exercising control (whether by ownership or management) over such person, and shall not imply any duty to investigate or be deemed to include any knowledge that might have become actually known following investigation. The phrase "actually known" shall have a correlative meaning.
(f) The obligations of the Company, or, in the case of Offered Debt Securities, the Issuers, under this Section 6 shall be in addition to any liability which the Company, or, in the case of Offered Debt Securities, the Issuers, may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; the obligations of the Underwriters under this Section 6 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, or, in the case of Offered Debt Securities, of the Issuers, (including any person who, with his or her consent, is named in the Registration Statement or the Prospectus as about to become a director of the Company or, in the case of Offered Debt Securities, the Issuers), and to each person, if any, who controls the Company, or, in the case of Offered Debt Securities, the Issuers, within the meaning of the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Jones Apparel Group Usa Inc)
Indemnifications. The indemnifications (a) From and after the Closing Date, Purchaser hereby agrees to indemnify, protect, reimburse and hold harmless Seller and Seller's shareholders, officers, directors, successors and assigns, and each of them (hereinafter collectively referred to as the "Seller Group"), from and against any and all Liabilities, damages, losses, obligations, penalties, claims, actions, litigations, Proceedings, demands, defenses, judgments, suits, costs, disbursements and expenses, including, but not limited to, reasonable attorneys' fees and expenses, or diminution of value, whether or not involving a third party claim (hereinafter collectively referred to as the "Damages") of whatsoever kind and nature, imposed upon, incurred by or asserted or awarded against any of the Seller Group directly or indirectly arising out of, relating to or resulting from (i) Purchaser's breach of any agreement, covenant, term, condition or provisions contained herein or Purchaser's failure to perform any agreements, covenant, term, condition or provision on its part to be performed, or (ii) Purchaser's misrepresentation or breach of any representation or warranty made by Purchaser hereunder as if such representation or warranty were made both on the date hereof and as of the Closing Date, or any material misstatement or omission in any certificate or schedule delivered or caused to be delivered by Purchaser pursuant to or in furtherance of the transactions contemplated hereby.
(b) From and after the Closing Date, subject to the threshold set forth in paragraph 7(f) below, Seller hereby agrees to indemnify, protect, reimburse and hold harmless Purchaser and Purchaser's shareholders, officers, directors, successors and assigns, and each of them (hereinafter collectively referred to as the "Purchaser Group") from and against any and all Damages of whatsoever kind and nature, imposed upon, incurred by or asserted or awarded against any of the Purchaser Group directly or indirectly arising out of, relating to or resulting from (i) any Liabilities or obligations of Seller including, without limitation, the Seller Retained Liabilities; (ii) Seller's breach of any agreement, covenant, term, condition or provision contained herein or Seller's failure to perform any agreement, covenant, term, condition or provision on its part to be performed hereunder; (iii) Seller's misrepresentation or breach of any representation or warranty made by Seller hereunder as if such representation or warranty were made both on the date hereof and as of the Closing Date, or any misstatement or omission in any certificate, schedule, application, exhibit, the Disclosure Schedule or any other document delivered or caused to be delivered by Seller pursuant to or in furtherance of the transactions contemplated hereby; (iv) Seller's breach of paragraph 8(a)(vii); or (v) Damages to Purchaser caused by Seller's stockholders.
(c) A party making a claim for indemnification hereunder (hereinafter referred to as the "Indemnified Party"), shall give the other party (hereinafter referred to as the "Indemnifying Party") written notice of such claim within a reasonable time from the actual discovery of same (the "Indemnification Notice"); provided, however, that follow in the next two Sections shall only apply failure to give such notice will not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party except to the extent that the indemnified party is not covered and indemnified Indemnifying Party demonstrates actual prejudice as a result thereof. Any such Indemnification Notice shall be accompanied by insurancea copy of documents which have been served upon the Indemnified Party, if any.
Section 13.01. Excepting if caused solely by (i) With respect to claims for indemnification relating to an action, claim, demand or Proceeding of a third party, the negligence Indemnifying Party shall, subject to the rights of or willful acts duties to any insurer, reinsurer or other Person having liability therefor, have the option to assume, at the Indemnifying Party's sole cost and expense, the control of Landlord or its agents, employees or subtenants (other than Tenant or the defense of any one claims by, through or under Tenantlegal proceedings, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims by or on behalf employment of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02the Indemnified Party, provided each of the following conditions are satisfied (collectively, the "Defense Conditions"): (A) the Indemnifying Party gives written notice thereof to the Indemnified Party no later than twenty (20) days from the date of receipt of the Indemnification Notice (the "Assumption Notice"); (B) the Indemnifying Party is not also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate; (C) the Indemnified Party determines in good faith that joint representation would not be inappropriate due to a conflict of interest; (D) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have sufficient financial resources to defend against the claims raised in the Proceeding and fulfill its indemnification obligations hereunder; (E) the claim involves only money damages and does not seek an injunction or other equitable relief (however, if the claim seeks equitable relief, the Indemnified Party will control, at its option, the defense of the Proceeding at the Indemnified Party's cost), and (F) the Indemnifying Party conducts the defense of such claim actively and diligently. Excepting if caused solely If the Indemnifying Party shall have exercised its right to assume control and established its right to do so, the Indemnified Party may, in its sole discretion and at its sole cost and expense, employ counsel to represent it in addition to counsel employed by the negligence or willful acts Indemnifying Party. If the Indemnifying Party exercises its right to assume control, it will be conclusively established for purposes of Tenant or its agents or employeesthis Agreement that the claims made in that proceeding are within the scope and subject to indemnification. The Indemnified Party shall cooperate with the Indemnifying Party assuming control of legal proceedings and shall make available all pertinent information under the control of the Indemnified Party as to such legal proceedings and shall make appropriate personnel reasonably available for discovery and trial. In addition, Landlord agrees in no event will Purchaser be entitled to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf indemnification of any person or persons, firm or firms, corporation or corporations arising from conduct or management Damages incurred by it in excess of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, Purchase Price. In the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf event that the Indemnifying Party shall exercise its right to undertake control of the defense of any person such legal proceedings, such Indemnifying Party may only compromise or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement settle such legal proceeding on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenant.behalf
Appears in 1 contract
Indemnifications. The indemnifications that follow in Tenant shall be liable for, and shall indemnify, defend, protect and hold Landlord and Landlord's partners, officers, directors, employees, agents, successors and assigns (collectively, "LANDLORD INDEMNIFIED PARTIES") harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys' fees and court costs (collectively, "INDEMNIFIED CLAIMS"), arising or resulting from (a) any occurrence at the next two Sections shall only apply Premises following the date Landlord delivers possession of the Premises to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if Tenant, unless caused solely by the gross negligence or willful acts misconduct of Landlord or its agents, employees or subtenants contractors, (other than b) any act or omission of Tenant or any one claims byof Tenant's agents, through employees, contractors, subtenants, assignees, licensees or, with respect to acts or under omissions within the Premises only, Tenant's invitees (collectively, including "TENANT PARTIES"); (c) the use of the Premises and Common Areas and conduct of Tenant's business by Tenant or any tenant occupying pursuant to a Collateral Lease)Tenant Parties, Tenant agrees to defendor any other activity, indemnify and save harmless Landlord against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done done, or caused by Tenant or any Tenant Parties, in or about the Demised Premises and Premises, the Common Areas so long as Building or elsewhere on the Project; and/or (d) any default by Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement obligations on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to under the terms of this Lease or the terms of any other contract or agreement between to which Tenant is a party or by which it is bound, affecting this Lease or the Premises. In case any action or proceeding is brought against Landlord or any Landlord Indemnified Parties by reason of any such Indemnified Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord, which approval shall not be unreasonably withheld. Subject to Section 22 hereof, Landlord will be liable for, and shall indemnify, protect, defend and hold harmless Tenant and Tenant's partners, officers, directors, employees, agents, successors and assigns (collectively, "TENANT INDEMNIFIED PARTIES") from and against any and all Indemnified Claims (but excluding claims for consequential damages or arising lost profits) that arise or result solely from (a) any negligent or willful act of negligence or omission of Landlord, or any of its Landlord's agents, employees or contractors, servants, employees, sublessees or licensees, or arising from (b) any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring occurrence in the Common Area of not caused by Tenant or the Shopping Centers so long as Tenant Parties, but only to the extent covered by the liability insurance maintained or required to be maintained by Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees pursuant to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenantthis Lease.
Appears in 1 contract
Samples: Multi Tenant Industrial Lease (HNC Software Inc/De)
Indemnifications. The indemnifications that follow in Neither LANDLORD nor any agent or employee of LANDLORD shall be liable to TENANT for any injury or damage to TENANT or to any other person or for any damage to, or loss (by other person, irrespective of the next two Sections shall only apply cause of such injury, damage, or loss), unless caused by or due to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or LANDLORD, its agents, or employees without contributory negligence of TENANT, its agents or subtenants (employees, subject to the comparative negligence doctrine, it being understood that no property, other than Tenant such as might normally be brought upon or any one claims bykept in the Premises as an incident to the reasonable use of the Premises for the purposes herein permitted, through will be brought upon or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, be kept in the Premises. TENANT shall indemnify and save harmless Landlord LANDLORD and its agents against and from (a) any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations (i) arising from (x) the conduct or management of the Demised Premises or from of any business therein, or (y) any work or thing whatsoever done done, or any condition created or permitted to exist (other than by LANDLORD for LANDLORD's or TENANT's account) in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, inor during the period of time, on or about if any, prior to the commencement of the term hereof that TENANT may have been given access to the Demised Premises Premises, or occurring in the Common Area (ii) arising from any negligent or otherwise wrongful act or omission of the Shopping Centers so long as Tenant is the Responsible PartyTENANT or any of its subtenants or its or their employees, agents, or contractors; and from and against (b) all costs, reasonable counsel feesexpenses, expenses and liabilities incurred about any in or in connection with each such claim or action or proceeding brought thereon; . Notwithstanding anything contained herein to the contrary, in no event shall Tenant be obligated to indemnify Landlord under this Section 16 from claims arising from the gross negligence or wilful misconduct of Landlord, its employees and in the event representatives. In case any action or proceeding be brought against LandlordLANDLORD, Tenant agrees to TENANT shall resist and defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlordproceeding.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenant.
Appears in 1 contract
Samples: Lease Agreement (Jabil Circuit Inc)
Indemnifications. A. The indemnifications that follow in Adviser shall indemnify the next two Sections Manager and its controlling persons, managing principals, members, officers, directors, employees, agents, legal representatives and persons controlled by it (which shall only apply not include the Trust or any Fund) (collectively, "Manager Related Persons") to the fullest extent the indemnified party is not covered and indemnified permitted by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord law against and from any and all claims loss, damage, judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees (collectively "Losses"), incurred by the Manager or on behalf of any person or persons, firm or firms, corporation or corporations Manager Related Persons arising from conduct or management in connection with this Agreement or the performance by the Manager or Manager Related Persons of its or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas their duties hereunder so long as Tenant is such Losses arise out of the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of TenantAdviser's, or any of its agents', contractorsgross negligence, servantswillful misconduct or bad faith, employeesin performing its responsibilities hereunder or under its agreements with the Trust, sublessees including, without limitation, such Losses arising under any applicable law or licensees, or arising from that may be based upon any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term untrue statement of this Lease, in, on or about the Demised Premises or occurring a material fact contained in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about LandlordTrust's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common AreasRegistration Statement, or any streetamendment thereof or any supplement thereto, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is omission to state therein a material fact known or which should have been known and was required to be stated therein or necessary to make the Responsible Partystatements therein not misleading, unless such statement or of omission was made in reasonable reliance upon information furnished to the Adviser or the Trust by the Manager or an Manager Related Person specifically for inclusion in the Registration Statement or any passageways amendment or spaces supplement thereto, except to the extent any such Losses referred to in Landlord's Buildingthis paragraph A result from willful misfeasance, bad faith, gross negligence or arising from any breach or default reckless disregard on the part of Landlord the Manager or an Manager Related Person in the performance of any covenant of its duties under, or agreement in connection with, this Agreement.
B. The Manager shall indemnify the Adviser and its controlling persons, officers, directors, employees, agents, legal representatives and persons controlled by it (collectively, "Adviser Related Persons") to the fullest extent permitted by law against any and all Losses incurred by the Adviser or Adviser Related Persons arising from or in connection with this Agreement or the performance by the Adviser or Adviser Related Persons of its or their duties hereunder so long as such Losses arise out of the Manager's gross negligence, willful misconduct or bad faith in performing its responsibilities hereunder, including, without limitation, such Losses arising under any applicable law or that may be based upon any untrue statement of a material fact contained in the Trust's Registration Statement, or any amendment thereof or any supplement thereto or the omission to state therein a material fact known or which should have been known and was required to be stated therein or necessary to make the statements therein not misleading, in any case only to the extent that such statement or omission was made in reasonable reliance upon written information furnished by the Manager or Manager Related Person to the Adviser or the Trust specifically for inclusion in the Registration Statement or any amendment or supplement thereto, except to the extent any such Losses referred to in this paragraph (I.E., paragraph B) result from willful misfeasance, bad faith, gross negligence or reckless disregard on the part of Landlord to be performed pursuant to the terms Adviser or a Adviser Related Person in the performance of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licenseesduties under, or arising from any accidentin connection with, injury or damage whatsoever caused to any person, firm or corporation occurring during this Agreement.
C. The indemnifications provided in this Section 5 shall survive the term termination of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to TenantAgreement.
Appears in 1 contract
Indemnifications. The indemnifications that follow (a) Subject to the conditions below, Seller shall indemnify and hold harmless Buyer and its shareholders, officers, directors and employees from and against and in respect of any and all damages, losses, diminution of value, or expenses suffered or incurred by any such party (whether as a result of third party or other claims (whether valid or not), demands, suits, causes of action, proceedings, investigations, judgments or liabilities or otherwise), including costs of investigation and defense and reasonable attorneys’ fees (“Claims”) assessed, incurred or sustained by or against any of them with respect to or arising out of (i) any breach of the next two Sections representations or warranties of Seller set forth herein or in any Transaction Document, (ii) any Excluded Liabilities, and (iii) any breach or other failure to perform any covenant, agreement or obligation of the Seller set forth herein or in any Transaction Document if such breach or other failure is not cured within any applicable cure period, provided, however, Seller shall only apply not be obligated to indemnify or hold harmless Buyer to the extent the indemnified party claim giving rise to such obligation is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely or occasioned by the negligence of Buyer or willful acts by Buyer’s breach of Landlord or its agentsthis Agreement.
(b) Subject to the conditions below, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, Buyer shall indemnify and save hold harmless Landlord Seller and its shareholders, officers, directors and employees, against and from in respect of any and all claims Claims assessed or incurred or sustained by or on behalf against any of them, with respect to or arising out of (i) any person breach of the representations or personswarranties of the Buyer set forth herein or in any Transaction Document; (ii) any breach or other failure to perform any covenant, firm agreement or firmsobligation of the Buyer set forth herein or in any Transaction Document, corporation (iii) any of the Assumed Liabilities; and (iv) any liability for the violation any Environmental Law or corporations arising from conduct or management Release of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement Hazardous Substances on the Demised Leased Premises on or after the Common Areas so long as Tenant Closing Date, provided, however, Buyer shall not be obligated to indemnify or hold harmless Seller to the extent the claim giving rise to such obligation is caused or occasioned by the Responsible Party, negligence of Seller or by the Sellers’ breach of the Agreement.
(c) If any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or Person shall claim indemnification hereunder arising from any Event claim or demand of Default under this Lease a third party, the party seeking indemnification (the “Indemnified Party”) shall promptly notify the party or any other agreement between Landlord and Tenant, or arising parties from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during whom indemnification is sought (the term of this Lease, in, on or about the Demised Premises or occurring “Indemnifying Party”) in the Common Area writing of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any basis for such claim or demand setting forth the nature of the claim or demand in reasonable detail. The failure of the Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any indemnification obligation hereunder except to the extent the Indemnifying Party demonstrates that the defense of such claim or demand is materially prejudiced by the failure to give such notice.
(d) If any legal proceeding or action is brought by a third party against an Indemnified Party and the Indemnified Party gives notice to the Indemnifying Party pursuant to Section 16(c) above, the Indemnifying Party will be entitled to participate in such proceeding and, to the extent that it wishes, to assume the defense of such proceeding if (i) the Indemnifying Party provides written notice to the Indemnified Party that the Indemnifying Party intends to undertake such defense and the Indemnifying Party will indemnify the Indemnified Party against all claims for indemnification resulting from or proceeding brought thereon; and in relating to such third party claim, (ii) the event any action or proceeding be brought against Landlord, Tenant agrees Indemnifying Party provides to the Indemnified Party evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend Landlord in such action or proceeding by against the third party claim and to fulfill its indemnification obligations hereunder, (iii) the Indemnifying Party conducts the defense of the third party claim actively and diligently with counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Indemnified Party, and from (iv) if the Indemnifying Party is a party to the proceeding, joint representation would not be inappropriate. The Indemnified Party shall, in its sole discretion, have the right to employ separate additional counsel (who may be selected by the Indemnified Party in its sole discretion) in any such action and against all coststo participate in the defense thereof, reasonable and the fees and expenses of such additional counsel fees, expenses shall be paid by such Indemnified Party. The Indemnified Party shall fully cooperate with the Indemnifying Party and liabilities incurred about any its counsel in the defense or compromise of such claim or action demand, provided that all out-of-pocket expenses incurred by Indemnified Party shall be paid by the Indemnifying Party (except as aforesaid).
(e) If the Indemnifying Party assumes the defense of a proceeding, (i) no compromise or proceeding brought thereonsettlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (ii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. Should one or more but not all of the Indemnifying Parties agree to defend any such third party claim, the Indemnifying Party or parties not participating in the event defense of the claim shall be bound by the acts and agreements of the other or others.
(f) If (i) notice is given to the Indemnifying Party of the commencement of any action proceeding and the Indemnifying Party does not, within ten (10) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such proceeding, (ii) any of the conditions set forth in clauses (i)-(iv) of Section 16(d) above become unsatisfied, or (iii) an Indemnified Party determines in good faith that there is a reasonable probability that a proceeding may adversely affect it other than as a result of monetary damages for which it would be brought entitled to indemnification under this Agreement, the Indemnified Party will (upon further notice to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such claim, provided that the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against Tenant, Landlord agrees the third party claim (including reasonable attorneys’ fees and expenses) and the Indemnifying Party will remain responsible for any indemnifiable amounts arising from or related to defend Tenant such third party claim to the fullest extent provided in this Section 16. The Indemnifying Party may elect to participate in such action proceedings, negotiations or proceeding by counsel reasonably satisfactory to Tenantdefense at any time at its own expense.
(g) If any party shall claim indemnification hereunder for any claim other than third party claims, the Indemnified Party shall promptly notify the Indemnifying Party in writing of the basis for such claim setting forth the nature and amount of the damages resulting from such claim. The Indemnifying Party shall give written notice of any disagreement with such claim within fifteen (15) days following receipt of Indemnified Party’s notice of the claim, specifying in reasonable detail the nature and extent of such disagreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Timco Aviation Services Inc)
Indemnifications. The indemnifications that follow in the next two Sections shall only apply to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agentsCompany will indemnify, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save hold harmless Landlord against each of the following:
(a) The Members, Governing Persons and from any and all claims by or on behalf officers of any person or personsthe Company as well as their officers, firm or firmsmanagers, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Partymembers, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or personspartners, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servantsowners, employees, sublessees or licenseesand agents, or arising from any accident(the “Indemnified Person”) if any, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costsClaims they may incur as a result of having been, reasonable counsel feesbeing, expenses and liabilities incurred about or threatened to be made a named defendant or respondent in a Proceeding because it is or was a Member, Governing Person or officer in the Company or is performing or had performed the obligations of the Member, Governing Person or officer with respect to the Company, SPECIFICALLY INCLUDING CLAIMS BASED ON OR ARISING FROM THEIR SOLE, PARTIAL, OR CONCURRENT NEGLIGENCE, but excluding any such claim items incurred as a result of acts of gross negligence, willful or action or proceeding brought thereon; and in intentional acts against the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to LandlordCompany.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and (b) Each Indemnified Person from and against all costsClaims such Person may incur as a result of appearing as a witness or other participation in a Proceeding that involves or affects the Company;
(c) Each Indemnified Person from and against all Claims such Person may incur as a result of having performed or performing services for the Company, SPECIFICALLY INCLUDING CLAIMS BASED ON OR ARISING FROM THE INDEMNIFIED PERSON’S SOLE, PARTIAL, OR CONCURRENT NEGLIGENCE.
(d) The rights of an Indemnified Person under this Section include the right to be paid or reimbursed by the Company for reasonable counsel feesexpenses incurred in defending any Proceeding in advance of its final disposition.
(e) If a claim for indemnification or advancement of expenses hereunder is not paid in full by the Company within 90 days after a written claim has been received by the Company, the Person seeking a remedy under this Section may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim, and if successful in whole or in part, the Person seeking a remedy under this Section will also be entitled to be paid the expenses of prosecuting such claim.
(f) The right of any Indemnified Person under this Section will survive the termination of that Person’s status as an Indemnified Person, the termination of this Agreement and liabilities incurred about any such claim or action or proceeding brought thereon; and in the dissolution of the Company.
(g) In the event of the death of a Person seeking a remedy under this Section, the right under this Section will inure to the benefit of such Person’s heirs, executors, administrators, and personal representatives.
(h) The rights conferred in this Section will not be exclusive of any action other right that a Person seeking a remedy under this Section may have or proceeding be brought against Tenanthereafter acquire under any statute, Landlord agrees to defend Tenant in such action resolution of Members, Governing Authority, this Agreement or proceeding by counsel reasonably satisfactory to Tenantotherwise.
Appears in 1 contract
Samples: Company Agreement (LGI Homes, Inc.)
Indemnifications. A. The indemnifications that follow in Adviser shall indemnify the next two Sections Manager and its controlling persons, managing principals, members, officers, directors, employees, agents, legal representatives and persons controlled by it (which shall only apply not include the Trust or any fund) (collectively, "Manager Related Persons") to the fullest extent the indemnified party is not covered and indemnified permitted by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord law against and from any and all claims loss, damage, judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees (collectively "Losses"), incurred by the Manager or on behalf of any person or persons, firm or firms, corporation or corporations Manager Related Persons arising from conduct or management in connection with this Agreement or the performance by the Manager or Manager Related Persons of its or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas their duties hereunder so long as Tenant is such Losses arise out of the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of TenantAdviser's, or any of its agents', contractorsgross negligence, servantswillful misconduct or bad faith, employeesin performing its responsibilities hereunder or under its agreements with the Trust, sublessees including, without limitation, such Losses arising under any applicable law or licensees, or arising from that may be based upon any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term untrue statement of this Lease, in, on or about the Demised Premises or occurring a material fact contained in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about LandlordTrust's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common AreasRegistration Statement, or any streetamendment thereof or any supplement thereto, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is omission to state therein a material fact known or which should have been known and was required to be stated therein or necessary to make the Responsible Partystatements therein not misleading, unless such statement or of omission was made in reasonable reliance upon information furnished to the Adviser or the Trust by the Manager or an Manager Related Person specifically for inclusion in the Registration Statement or any passageways amendment or spaces supplement thereto, except to the extent any such Losses referred to in Landlord's Buildingthis paragraph A result from willful misfeasance, bad faith, gross negligence or arising from any breach or default reckless disregard on the part of Landlord the Manager or an Manager Related Person in the performance of any covenant of its duties under, or agreement in connection with, this Agreement.
B. The Manager shall indemnify the Adviser and its controlling persons, officers, directors, employees, agents, legal representatives and persons controlled by it (collectively, "Adviser Related Persons") to the fullest extent permitted by law against any and all Losses incurred by the Adviser or Adviser Related Persons arising from or in connection with this Agreement or the performance by the Adviser or Adviser Related Persons of its or their duties hereunder so long as such Losses arise out of the Manager's gross negligence, willful misconduct or bad faith in performing its responsibilities hereunder, including, without limitation, such Losses arising under any applicable law or that may be based upon any untrue statement of a material fact contained in the Trust's Registration Statement, or any amendment thereof or any supplement thereto or the omission to state therein a material fact known or which should have been known and was required to be stated therein or necessary to make the statements therein not misleading, in any case only to the extent that such statement or omission was made in reasonable reliance upon written information furnished by the Manager or Manager Related Person to the Adviser or the Trust specifically for inclusion in the Registration Statement or any amendment or supplement thereto, except to the extent any such Losses referred to in this paragraph (i.e., paragraph B) result from willful misfeasance, bad faith, gross negligence or reckless disregard on the part of Landlord to be performed pursuant to the terms Adviser or a Adviser Related Person in the performance of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licenseesduties under, or arising from any accidentin connection with, injury or damage whatsoever caused to any person, firm or corporation occurring during this Agreement.
C. The indemnifications provided in this Section 5 shall survive the term termination of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to TenantAgreement.
Appears in 1 contract
Indemnifications. The indemnifications that follow in (i) In addition to any other indemnity which any or all Borrowers may have to Agent or any Lender under any of the next two Sections shall only apply other Loan Documents and without limiting such other indemnification provisions, each Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees and to hold each of the Agent Indemnitees and Lender Indemnitees harmless from and against any and all Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (except to the extent it results from their own gross negligence or willful misconduct) incur or be subject to as a consequence, directly or indirectly, of (a) the issuance of, payment or failure to pay or any performance or failure to perform under any Letter of Credit or LC Support or (b) any suit, investigation or proceeding as to which Agent or any Lender is or may become a party to as a consequence, directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and defend each of the Fleet Indemnitees (to the extent the indemnified party is Fleet Indemnitees are not covered and indemnified reimbursed by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant Borrowers or any one claims byother Obligor, through or but without limiting the indemnification obligations of Borrowers under Tenant, including any tenant occupying pursuant to a Collateral Leasethis Agreement), Tenant agrees to defendon a Pro Rata basis, indemnify from and save harmless Landlord against and from any and all claims Claims which may be imposed on, incurred by or on behalf asserted against any of the Fleet Indemnitees in any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, way related to or arising from out of Fleet's administration or enforcement of rights or remedies under any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, the LC Documents or any of its agentsthe transactions contemplated thereby (including costs and expenses which Borrowers are obligated to pay under Section 15.2 hereof), contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused INCLUDING ALL CLAIMS ARISING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE FLEET INDEMNITEES provided that no Participating Lender shall be liable to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is Fleet Indemnitees for any of the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant foregoing to the terms of this Lease extent that they result solely from the willful misconduct or any other agreement between Landlord and Tenant, or arising from any act of gross negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to TenantFleet Indemnitees.
Appears in 1 contract
Samples: Loan and Security Agreement (Tropical Sportswear Co Inc)
Indemnifications. The indemnifications that follow in the next two Sections shall only apply to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area obligation of the Shopping Centers so long as Tenant is the Responsible PartyAccount Party hereof to pay such amounts shall be absolute, unconditional and from irrevocable and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and shall be paid strictly in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to accordance with the terms of this Lease Agreement under all circumstances whatsoever, including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or other right which the Beneficiary, the Account Party, the Guarantor, the Letter of Credit Issuer or other person or entity may have at any time against the Beneficiary, the Account Party, the Guarantor, the Letter of Credit Issuer or any other person or entity for any reason whatsoever, whether in connection with this Agreement, the Letter of Credit, the Guaranty (as hereinafter defined) or any agreement between Landlord and Tenantor document referred to in any thereof or in connection with any unrelated transaction;
(b) any certificate presented under the Letter of Credit proving to be forged, fraudulent or arising from invalid; or
(c) any act other circumstance or happening whatsoever not constituting gross negligence or willful misconduct of negligence the Letter of LandlordCredit Issuer, whether or not similar to any of the foregoing. In addition, neither the Letter of Credit Issuer nor any of its agentsdirectors, contractorsofficers, servantsemployees or agents shall have any liability or responsibility of any kind to the Beneficiary, employeesthe Account Party, sublessees the Guarantor or licenseesany other person or entity under or in connection with the Letter of Credit, in connection with any acts or arising from omissions of any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is foregoing persons or entities or in connection with any payment or failure to make payment thereunder by the Responsible PartyLetter of Credit Issuer under any circumstances whatsoever, except that the Letter of Credit Issuer shall be liable for the amount of any damages suffered by the Account Party or the Guarantor which are caused by the Letter of Credit Issuer's willful misconduct or negligence in performing its obligations under this Agreement or the Letter of Credit (including in determining whether documents presented or delivered under the Letter of Credit appear to comply with the terms of the Letter of Credit). In furtherance and from and against all costsnot in limitation of the foregoing, reasonable counsel feesthe Letter of Credit Issuer may accept documents that appear on their face to be in order, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenantwithout responsibility for further investigation.
Appears in 1 contract
Indemnifications. (a) The indemnifications that follow in the next two Sections Corporation shall only apply to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to defend, indemnify and save hold harmless Landlord the Warrantee and each person, if any, who controls the Warrantee within the meaning of the Securities Act of 1933, as amended (the "Securities Act") from and against and from any and all claims losses, claims, damages, expenses or liabilities, joint and several, to which they or any of them may become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Warrantee and each such controlling person, if any, for any legal or other expenses reasonably incurred by any of them in connection with investigating or on behalf defending any actions, whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, any preliminary prospectus or the final prospectus (or the registration statement or prospectus as from time to time amended or supplemented by the Corporation) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such untrue statement or omission was made in reliance upon and in conformity with information furnished in writing to the Corporation in connection therewith by the Warrantee expressly for use therein. Promptly after receipt by the Warrantee or any person controlling the Warrantee of notice of the commencement of any person action in respect of which indemnity may be sought against the Corporation, the Warrantee will notify the Corporation in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Corporation shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to the Warrantee or personssuch person, firm or firmsas the case may be, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long payment of legal expenses), insofar as Tenant is such action shall relate to any alleged liability in respect of which indemnity may be sought against the Responsible PartyCorporation. The Warrantee or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall not be at the expense of the Corporation unless the employment of such counsel has been specifically authorized by the Corporation, and which authorization shall be given whenever the party seeking indemnity has been advised by its counsel that one or more legal defenses may be available to it that are not available to the Corporation or that for other reasons separate representation may be necessary, to avoid a conflict. The Corporation shall not be liable to indemnify any person for any settlement of any such action effected without the consent of the Corporation.
(b) The Warrantee will further indemnify and save Landlord hold harmless the Corporation, each of its directors and each of its officers who have signed the registration statement and each person, if any, who controls the Corporation within the meaning of the Securities Act from and against and from any and all claims by or on behalf losses, claims, damages, expenses of any person or personsliabilities, firm or firmsjoint and several, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, to which they are or any of its agentsthem may become subject under the Securities Act or under any other statute or at common law or otherwise, contractorsand, servantsexcept as hereinafter provided, employeeswill reimburse the Corporation and each such director, sublessees officer or licenseescontrolling person for any legal and other expenses reasonably incurred by any of them in connection with investigating or defending any actions, whether or arising not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary prospectus or in the final prospectus (or the registration statement or prospectus as from time to time amended or supplemented) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein in order to make the statements therein not misleading, but only insofar as any accidentsuch statement or omission was made in reliance upon and in conformity with information furnished in writing to the Corporation in connection therewith by the Warrantee expressly for use therein. Promptly after receipt of notice of the commencement of any action in respect of which indemnity may be sought against the Warrantee, injury the Corporation will notify the Warrantee in writing of the commencement thereof, and the Warrantee shall, subject to the provisions hereinafter stated, assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to the Corporation, and the payment of legal expenses) insofar as such action shall relate to an alleged liability in respect of which indemnity may be sought against the Warrantee. The Corporation and each such director, officer or damage whatsoever caused controlling person shall have right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Warrantee unless the employment of such counsel has been specifically authorized by the Warrantee, which authorization shall be given whenever separate representation may be necessary to avoid a conflict. The Warrantee shall not be liable to indemnify any person of any settlement of any such action effected without the consent of the Warrantee.
(c) The indemnity provisions of this Section 8 shall be in addition to any person, firm or corporation occurring during liability the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlordindemnitor may otherwise have.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenant.
Appears in 1 contract
Samples: Warrant Agreement (Satx Inc)
Indemnifications. 15.1. The indemnifications Partner agrees that follow in AXIORY will not be held liable for any costs, damages or losses caused by force majeure events, including but not limited to, government restrictions, exchange or market rulings, suspension or delay of trading, war, civil disturbances, earthquakes, strikes, equipment failure, communication line failure, system failure, unauthorised access, theft or any problem, technical or otherwise, which may prevent the next two Sections shall only apply to Client from entering or modifying an order or prevent AXIORY from acting on an online instruction, or other events or conditions beyond AXIORY’s control, as determined and at the extent the indemnified party is not covered and indemnified by insurancesole discretion of AXIORY.
Section 13.0115.2. Excepting if caused solely by the negligence or willful acts of Landlord or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant The Partner agrees to defend, indemnify and save harmless Landlord against and from that AXIORY will not be held liable for any and all claims by manner of claims, demands, proceedings, suits or on behalf of any person or personsactions, firm or firmsliabilities, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel feeslosses, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; costs (including accountant and in the event any action or proceeding be brought against Landlord, Tenant agrees attorney fees) (collectively “Loss”) relating to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from out of:
(a) The Partner’s failure to perform its obligations under any breach agreement with AXIORY;
(b) Any dishonest, fraudulent, negligent or default criminal act or omission on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of LandlordPartner, or any person acting on its behalf, with respect to the Clients and/or other Partners;
(c) The Partner’s breach of its agentsany warranty made by it under any agreement with AXIORY; or
(d) The institution of any investigation, contractorsclaim, servantssuit, employees, sublessees or licenseesaction, or other proceeding against AXIORY relating to or arising out of this Agreement by a Client and/or Sub-Partner and/or Parent Partner, any governmental, regulatory or self-regulatory authority or organisation.
15.3. Upon notice from AXIORY, the Partner will promptly pay to AXIORY any accidentamount owed to AXIORY under this clause. The Partner further agrees that, injury if any person (natural or legal) has instituted a claim, suit, action, arbitration or other proceeding, or threatened to do so, against AXIORY which reasonably could expose AXIORY to Loss or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area its reputation and that is related to an obligation of the Shopping Centers so long as Landlord is Partner under this Agreement, AXIORY may withhold any amount equal to the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about amount of any such claim from sums owed to the Partner by the Company, or action from any other funds, securities or other property owned by the Partner and on deposit with AXIORY for any purpose (including, without limitation, funds, securities or other property held in any account of the Partner), until such claim, suit, action, arbitration or other proceeding brought thereon; and in has been fully resolved to the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenantsatisfaction of AXIORY.
Appears in 1 contract
Samples: Partner Agreement
Indemnifications. The indemnifications (a) NIKE shall defend, indemnify and hold harmless UNIVERSITY, its officers, employees and agents (each, a “UNIVERSITY Party” and collectively, "UNIVERSITY Parties") from and against all suits, actions, claims, judgments, damages, losses, liabilities, costs and expenses, but excluding attorney fees, (“Claims”) incurred by any UNIVERSITY Parties arising out of or relating to: (i) NIKE's breach of any material term of this Agreement; or (ii) the acts or omissions of NIKE, or those of its employees and/or agents; provided NIKE is given prompt written notice of and shall have the option to undertake and conduct the defense of any such Claim; and further provided that follow any indemnity provided by NIKE shall be in the next two Sections shall only apply proportion to and to the extent the indemnified party is not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by of the negligence or willful acts misconduct of Landlord NIKE Parties. In any instance to which the foregoing indemnities pertain, UNIVERSITY Parties shall cooperate fully with and assist NIKE in all respects in connection with any such defense, and no UNIVERSITY Party shall enter into a settlement of such Claim or its agents, employees admit liability or subtenants fault on the part of NIKE without NIKE's prior written approval.
(other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease), Tenant agrees to b) UNIVERSITY shall defend, indemnify and save hold harmless Landlord against and from any and all claims by or on behalf of any person or personsNIKE, firm or firmsits directors, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servantsofficers, employees, sublessees or licenseesagents and assigns (“NIKE Parties”), or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costsClaims incurred by any NIKE Parties arising out of or relating to: (i) a claim that a UCLA Xxxx violates or infringes upon the trademark, reasonable counsel feescopyright or other right of any third party; (ii) a claim that NIKE's use of any Coach Property (to the extent specifically authorized by UNIVERSITY in writing) violates the rights of publicity, expenses and liabilities incurred about right of privacy or any other right of any Coach; (iii) UNIVERSITY’s breach of any material term of this Agreement; or (iv) the acts or omissions of any UNIVERSITY Party; provided UNIVERSITY is given prompt written notice of any such claim or action or proceeding brought thereonClaim; and further provided that any indemnity provided by UNIVERSITY shall be in proportion to and to the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by extent of the negligence or willful acts misconduct of Tenant or its agents or employeesUNIVERSITY Parties. In any instance to which the foregoing indemnities pertain, Landlord agrees to defend, indemnify NIKE shall cooperate fully with and save harmless Tenant against and from assist UNIVERSITY in all respects in connection with any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areassuch defense, and will further indemnify and save Tenant harmless against and from any and all claims by NIKE shall not enter into a settlement of such Claim or on behalf of any person admit liability or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default fault on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to TenantUNIVERSITY without UNIVERSITY’s prior written approval.
Appears in 1 contract
Samples: All Sport Agreement
Indemnifications. The indemnifications that follow in the next two Sections shall only apply (a) Subject to the extent limitations and procedures described herein, each of the indemnified party is Sellers, severally but not covered jointly, shall indemnify and indemnified by insurance.
Section 13.01. Excepting if caused solely by hold harmless, the negligence or willful acts of Landlord or Buyer, its agentssubsidiaries (including the Company), its controlling persons, the respective directors, officers, employees or subtenants and agents of any of the foregoing and each of the heirs, executors, successors and permitted assigns of any of the foregoing (other than Tenant or any one claims byeach, through or under Tenant, including any tenant occupying pursuant to a Collateral Lease"BUYER INDEMNITEE"), Tenant agrees to defend, indemnify from and save harmless Landlord against and from any and all claims claims, losses, liabilities, damages, costs, penalties, fines, costs and expenses (including reasonable attorneys' fees and expenses) (collectively, "DAMAGES"), incurred or suffered by or on behalf of any person or persons, firm or firms, corporation or corporations arising a Buyer Indemnitee resulting from conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Party, and will further indemnify and save Landlord harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event out of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or (i) an inaccuracy in any of its agentsthe representations and warranties of such Seller set forth in Article II, contractors, servants, employees, sublessees or licensees, or arising from (ii) an inaccuracy in any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is representations and warranties of the Responsible PartySellers set forth in Article III, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any (iii) a breach by such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance Seller of any covenant or agreement of such Seller contained in this Agreement, (iv) such Seller's failure to pay his share, based on his Pro Rata Percentage, of the part costs and expenses that are the responsibility of Landlord the Sellers under Section 7.04 and/or (v) such Seller's failure to be performed pursuant pay his share of the Specified Liabilities assumed by the Sellers under the Assumption Agreement as set forth therein.
(b) Subject to the terms of this Lease or any other agreement between Landlord limitations and Tenantprocedures described herein, or arising from any act of negligence of Landlordthe Buyer shall indemnify and hold harmless each Seller, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area and each of the Shopping Centers so long as Landlord is the Responsible Partyheirs, executors, successors and permitted assigns thereof (each, a "SELLER INDEMNITEE" and, together with a Buyer Indemnitee, an "INDEMNITEE"), from and against any and all costsDamages incurred or suffered by a Seller Indemnitee resulting from or arising out of (i) an inaccuracy in any of the representations and warranties of the Buyer set forth in Article IV, reasonable counsel fees(ii) a breach by the Buyer of any covenant or agreements of the Buyer contained in this Agreement and/or (iii) costs and expenses that are the responsibility of the Buyer under Section 7.04.
(c) No individual Seller's indemnification obligation for Damages under Section 6.02(a)(ii) shall exceed such Seller's Pro Rata Percentage of such Damages.
(d) No Seller shall be liable for Damages resulting from (i) the inaccuracy of a representation or warranty which is given individually by another Seller or (ii) a breach of a covenant which is the individual obligation of another Seller.
(e) The indemnification by any Seller in favor of the Buyer Indemnitees contained in Sections 6.02(a)(i) and 6.02(a)(ii), expenses other than with respect to an inaccuracy of such Seller's representations in Sections 2.01, 2.02, 2.07, 3.06, 3.07(c) or 3.15, shall not be effective until the aggregate dollar amount of all Damages indemnified against under such Sections by such Seller exceeds his Pro Rata Percentage of fifty thousand dollars ($50,000) (for each Seller, a "THRESHOLD AMOUNT"), and liabilities incurred about then only to the extent such aggregate amount exceeds such Seller's Threshold Amount. In addition, the indemnification by any Seller in favor of the Buyer Indemnitees contained in Sections 6.02(a)(i) and 6.02(a)(ii) (other than with respect to an inaccuracy of such claim Seller's representations in Sections 2.01, 2.07, 3.06 or action 3.15, which shall not have a limitation) shall terminate once the dollar amount of all Damages indemnified under such Sections by such Seller exceeds his Pro Rata Percentage of two million, six hundred sixty-seven thousand dollars ($2,667,000).
(f) The indemnification by the Buyer in favor of the Seller Indemnitees contained in Section 6.02(b)(i), other than with respect to an inaccuracy of the Buyer's representations in Sections 4.07 or proceeding brought thereon; 4.09, shall not be effective until the aggregate dollar amount of all Damages indemnified against under such Section exceeds fifty thousand dollars ($50,000) (the "BUYER'S THRESHOLD AMOUNT"), and then only to the extent such aggregate amount exceeds the Buyer's Threshold Amount. In addition, the indemnification by the Buyer in favor of the Seller Indemnitees contained in Section 6.02(b)(i) (other than with respect to an inaccuracy of the Buyer's representations in Sections 4.07 or 4.09, which shall not have a limitation) shall terminate once the dollar amount of all Damages indemnified under such Sections exceeds two million, six hundred sixty-seven thousand dollars ($2,667,000).
(g) Any recovery made by a Buyer Indemnitee under this Article VI shall be first made from the Escrow Amount in the manner described herein and in the Escrow Agreement and after the Escrow Agreement has terminated, or in the event that the Escrow Amount is insufficient, recovery may be made against the Sellers in any action or proceeding manner permitted by Law, subject to the limitations of Sections 6.02(c), 6.02(d), 6.02(e) and 7.12.
(h) For purposes of this Article VI, White may use any and all of the Buyer Shares received by him to satisfy any of his indemnification obligations to the Buyer. For such purposes, each Buyer Share shall be brought against Tenantvalued at the average of the last sale prices for the Buyer Common Stock, Landlord agrees to defend Tenant in such action or proceeding as reported by counsel reasonably satisfactory to TenantNasdaq, for the five (5) most recent trading days on which a sale of the Buyer Common Stock occurred preceding the date of the notice from the Buyer asserting its claim (x) for indemnification under this Agreement and/or (y) for release of any of the Escrow Amount under the Escrow Agreement.
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Samples: Stock Purchase Agreement (Maxcor Financial Group Inc)
Indemnifications. The indemnifications (a) Each Investor, its Affiliates and its and their respective officers, directors, members, employees, managers, general partners, advisors and agents (each, an “Indemnitee”) shall be indemnified to the fullest extent permitted by law by the Company, jointly and severally, for any and all Losses to which such Indemnitees may become subject as a result of, arising in connection with, or relating to any actual or threatened claim, suit, action, arbitration, cause of action, complaint, allegation, criminal prosecution, investigation, inquiry, demand letter, or proceeding, whether at law or at equity, direct or derivative and whether public or private, before or by any Governmental Entity, any arbitrator or other tribunal (each, and including any appeals therefrom, an “Action”) by any third party (including, without limitation, any stockholder of the Company or any regulator and including Losses arising from Actions not directly against an Indemnitee, such as witness expenses or responding to inquiries from a Governmental Entity) related to the Transactions; provided that follow the Company shall not be liable to indemnify any Indemnitee for any such Losses to the extent that such Losses (i) have resulted from an Investor’s breach of this Agreement, (ii) related to any transaction or arrangement, including any financing or hedging arrangement or trading in Company Common Stock, of such Investor or its Affiliates in connection with the applicable Investor’s or its Affiliates’ investment in the next two Sections New Notes or (iii) have resulted from an Indemnitee’s willful misconduct or fraud in connection with the Transactions; provided, further, that the Company shall only not be liable to indemnify an Indemnitee or its Affiliates and its and their respective officers, directors, members, employees, managers, general partners, advisors and agents under this Section 4.09 unless such Indemnitee provides notice of an Action for which indemnification is sought no later than six (6) months following the Closing Date, in which case the Company’s indemnification obligations under this Section 4.09 shall cover such Action and any appeals therefrom. The parties agree, for the avoidance of doubt, that this Section 4.09 shall not apply to any matter for which indemnification is otherwise provided in Section 5.06.
(b) Each Indemnitee shall give the Company prompt written notice (an “Indemnification Notice”) of any Action it has actual knowledge of that might give rise to Losses for which an Indemnitee would reasonably be likely to be entitled to indemnification under this Section 4.09, which notice shall set forth a description of those elements of such Action of which such Indemnitee has knowledge and promptly deliver to the Company any complaints such Action or other documents provided to such Indemnitee in connection with; provided, that any delay or failure to give such Indemnification Notice shall not affect the indemnification obligations of the Company hereunder except to the extent the Company are materially prejudiced by such delay or failure.
(c) The Company shall have the right, exercisable by written notice to the applicable Indemnitee within thirty (30) days of receipt of the applicable Indemnification Notice, to select counsel to defend and control the defense of any third party claim set forth in such Indemnification Notice and the Company shall pay all fees and expenses of such counsel; provided, that the Company shall not be entitled to so select counsel or control the defense of any claim to the extent that (i) such claim seeks primarily non-monetary or injunctive relief against the Indemnitee or alleges any violation of criminal law, (ii) the Company does not, subsequent to its assumption of such defense in accordance with this clause (c), conduct the defense of such claim in good faith, (iii) any of the Indemnitees reasonably determines upon the advice of counsel that representation of all such Indemnitees by the same counsel would be prohibited by applicable codes of professional conduct, or (iv) in the event that, based on the reasonable advice of counsel for the applicable Indemnitee, there are one or more material defenses available to the applicable Indemnitee that are not available to other defendants. If the Company does not assume the defense of any third party claim in accordance with this clause (c), the applicable Indemnitee may continue to defend such claim at the sole cost of the Company and the Company may still participate in, but not control, the defense of such third party claim at the Company’s sole cost and expense. In no event shall the Company, in connection with any Action or separate but substantially similar Actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnitees chosen by the applicable Investor together with its Affiliates, and one separate firm of local counsel, in addition to regular counsel, to the extent required in order to effectively defend the Action.
(d) No Indemnitee shall consent to a settlement of, or the entry of any judgment arising from, any claim for which such Indemnitee is entitled to indemnification pursuant to this Section 4.09, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the applicable Indemnitee, the Company, in the defense of any claim for which such Indemnitee is entitled to indemnification pursuant to this Section 4.09, shall not consent to the entry of any judgment or enter into any settlement unless such settlement includes (i) an unconditional release of such indemnified party is from all liability on claims that are the subject matter of such proceeding and (ii) does not covered and indemnified by insurance.
Section 13.01. Excepting if caused solely by the negligence include a statement as to or willful acts an admission of Landlord fault, culpability or its agents, employees or subtenants (other than Tenant or any one claims by, through or under Tenant, including any tenant occupying pursuant a failure to a Collateral Lease), Tenant agrees to defend, indemnify and save harmless Landlord against and from any and all claims act by or on behalf of any person indemnified party. In any such third party claim where the Company has assumed control of the defense thereof pursuant to clause (c), the Company shall keep the applicable Indemnitee reasonably informed as to the status of such claim at all stages thereof (including all settlement negotiations and offers), promptly submit to such Indemnitee copies of all pleadings, responsive pleadings, motions and other similar legal documents and paper received or personsfiled in connection therewith, firm or firms, corporation or corporations arising from permit such Indemnitee and their respective counsels to confer with the Company and its counsel with respect to the conduct or management of or from any work or thing whatsoever done in or about the Demised Premises and the Common Areas so long as Tenant is the Responsible Partydefense thereof, and will further indemnify permit such Indemnitee and save Landlord harmless against and from any and their respective counsel a reasonable opportunity to review all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or any street, curb or sidewalk adjoining the Demised Premises or the Common Areas so long as Tenant is the Responsible Party, or of any passageways or spaces therein or appurtenant thereto, or arising from any Event of Default under this Lease or any other agreement between Landlord and Tenant, or arising from any act of negligence of Tenant, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about the Demised Premises or occurring in the Common Area of the Shopping Centers so long as Tenant is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Landlord, Tenant agrees to defend Landlord in such action or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or willful acts of Tenant or its agents or employees, Landlord agrees to defend, indemnify and save harmless Tenant against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations arising from conduct or management of or from any work or thing whatsoever done in or about Landlord's Buildings and so long as Landlord is the Responsible Party, the Common Areas, and will further indemnify and save Tenant harmless against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising during the term of this Lease from any condition of any building, structure or improvement on Landlord's Building or, so long as Landlord is the Responsible Party, the Common Areas, or any street, curb or sidewalk adjoining Landlord's Building or the Common Areas so long as Landlord is the Responsible Party, or of any passageways or spaces in Landlord's Building, or arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord legal papers to be performed pursuant submitted prior to their submission; provided that the terms Company shall not be obligated to provide materials, documents or information the disclosure of this Lease which would reasonably be likely to jeopardize the attorney-client privilege between the Company and its counsel or any other agreement between Landlord and Tenant, or arising from any act of negligence of Landlord, or any of its agents, contractors, servants, employees, sublessees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease, in, on or about Landlord's Building or occurring in the Common Area of the Shopping Centers so long as Landlord is the Responsible Party, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred about any such claim or action or proceeding brought thereon; and in the event any action or proceeding be brought against Tenant, Landlord agrees to defend Tenant in such action or proceeding by counsel reasonably satisfactory to Tenantviolate applicable law.
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