Indemnity Contribution. (a) Borrower and each of its Subsidiaries shall indemnify and hold harmless each Indemnified Person from and against any Claim that may be instituted or asserted against or incurred by any such Indemnified Person as the result of, arising out of or in connection with: (i) Any breach of any warranty or the inaccuracy of any representation made by any Borrower Party; (ii) The failure by any Borrower Party to fulfill any of its covenants, agreements or undertakings under this Agreement or any other Loan Document (or any other document or instrument executed herewith or pursuant hereto); (iii) Any third party actions, suits, proceedings or claims brought against any Indemnified Person with respect to (A) the Spin-Off or any of the transactions related thereto or contemplated thereby, (B) the Purchase Agreement or the transactions contemplated thereby, or (C) any item of Collateral or (D) the business, properties, operations or affairs of any Borrower Party or any of its Subsidiaries; (iv) credit having been extended or not extended under this Agreement and the other Loan Documents; (v) or otherwise in connection with or arising out of the transactions contemplated hereunder or thereunder, including any Claim for Environmental Liabilities and Costs and legal costs and expenses of disputes between the parties to this Agreement. (b) In any suit, proceeding, or action brought by Lender relating to any item of Collateral or any amount owing hereunder, or to enforce any provision of any item of Collateral, Borrower shall save, indemnify, and hold harmless Lender from and against all expense, loss, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by the other party or parties to such litigation and howsoever arising. All obligations of Borrower or any of its Subsidiaries with respect to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and shall not be enforceable against Lender. This Section 10.3 shall survive the Termination Date. (c) Any Person entitled to indemnification under this Section 10.3 shall (a) give prompt written notice to the Borrower of any claim with respect to which it seeks indemnification (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations to the extent they are not substantially prejudiced thereby) and (b) permit the Borrower to assume the defense of such claim with counsel selected by the Borrower and reasonably acceptable to such Person; provided, however, that any Person entitled to indemnification hereunder shall first have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the Borrower has agreed to pay such fees or expenses of such counsel; (ii) the Borrower has failed to notify such Person in writing within ten (10) days of its receipt of such written notice of claim that it will assume the defense of such claim and employ counsel reasonably satisfactory to such Person; or
Appears in 2 contracts
Samples: Loan and Security Agreement (Levine Leichtman Capital Partners Ii Lp), Loan and Security Agreement (Overhill Farms Inc)
Indemnity Contribution. (a) Borrower and each of its Subsidiaries shall indemnify and hold harmless each Indemnified Person from and against any Claim that may be instituted or asserted against or incurred by any such Indemnified Person as the result of, arising out of or in connection with:
(i) Any breach The Corporation, on the one hand, and SI, on the other hand, agrees that, to the extent that SI or any of its Affiliates indemnifies and/or advances expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement to any SI Director that the Corporation is obligated to indemnify or advance under the Certificate of Incorporation, the Bylaws or any agreement between the Corporation and such SI Director (including an indemnification agreement entered into pursuant to Section 2.05) (collectively, the “Indemnifiable Expenses”):
(A) As between the Corporation, on the one hand, and SI or any of its Affiliates, on the other hand, the Corporation shall be primarily liable for the Indemnifiable Expenses, regardless of whether SI or any of its Affiliates are permitted or obligated to pay such Indemnifiable Expenses and regardless of any warranty rights or claims that any SI Director may have against SI or any of its Affiliates;
(B) Within ninety (90) days of the inaccuracy Corporation’s receipt of a written notice from SI or any of its Affiliates of SI’s or any of its Affiliates’ payment of any representation made by Indemnifiable Expenses to any Borrower Party;SI Director, together with the aggregate dollar amount of the Indemnifiable Expenses (an “Indemnifiable Expenses Notice”), the Corporation shall reimburse SI or its relevant Affiliate or Affiliates for the full amount of any Indemnifiable Expenses set forth in the Indemnifiable Expenses Notice; and
(C) The Corporation waives, relinquishes and releases SI and its Affiliates from any and all claims for contribution, subrogation, indemnification or any other recovery in respect of the Indemnifiable Expenses.
(ii) The failure Notwithstanding anything in Section 2.01(f)(i) to the contrary and to the fullest extent permitted by any Borrower Party Applicable Law, the Indemnifiable Expenses Notice shall be required to fulfill any include solely and exclusively a description of its covenantsthe general nature of the Indemnifiable Expenses and the aggregate amount of the Indemnifiable Expenses sought and shall not be required to include, agreements contain or undertakings under this Agreement or any other Loan Document (or any other document or instrument executed herewith or pursuant hereto);
(iii) Any third party actionsreveal, suitsas applicable, proceedings or claims brought against any Indemnified Person with respect to (A) the Spin-Off or any certification of the transactions related thereto or contemplated therebycounsel, (B) any information that would jeopardize the Purchase Agreement protection of the attorney-client, work product or the transactions contemplated therebysimilar protection or privilege, or (C) any item of Collateral or confidential information (other than the Information), (D) the businesshourly rates, propertiestime spent or time entries of relevant counsel, operations or affairs of any Borrower Party or any of its Subsidiaries;
(iv) credit having been extended or not extended under this Agreement and the other Loan Documents;
(v) or otherwise in connection with or arising out of the transactions contemplated hereunder or thereunder, including any Claim for Environmental Liabilities and Costs and legal costs and expenses of disputes between the parties to this Agreement.
(b) In any suit, proceeding, or action brought by Lender relating to any item of Collateral or any amount owing hereunder, or to enforce any provision of any item of Collateral, Borrower shall save, indemnify, and hold harmless Lender from and against all expense, loss, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by the other party or parties to such litigation and howsoever arising. All obligations of Borrower or any of its Subsidiaries with respect to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and shall not be enforceable against Lender. This Section 10.3 shall survive the Termination Date.
(c) Any Person entitled to indemnification under this Section 10.3 shall (a) give prompt written notice to the Borrower of any claim with respect to which it seeks indemnification (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations to the extent they are not substantially prejudiced thereby) and (b) permit the Borrower to assume the defense of such claim with counsel selected by the Borrower and reasonably acceptable to such Person; provided, however, that any Person entitled to indemnification hereunder shall first have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (iE) the Borrower has agreed to pay such fees individual names or expenses seniority of such counsel; relevant counsel or (iiF) the Borrower has failed to notify such Person in writing within ten (10) days of its receipt of such written notice of claim that it will assume the defense of such claim and employ counsel reasonably satisfactory to such Person; orany other information.
Appears in 1 contract
Samples: Business Combination Agreement (Arena Group Holdings, Inc.)
Indemnity Contribution. (a) Borrower a. The Partnership shall indemnify, defend and hold the Partners and Affiliates of each of its Subsidiaries shall indemnify them, harmless from any and hold harmless each Indemnified Person from and against any Claim that may be instituted all claims, causes of action, losses, damages, liabilities, costs or asserted against or expenses (including, without limitation, reasonable attorneys' fees) incurred by any such Indemnified Person as the result of, arising out or all of or in connection with:
(i) Any breach them at any time by reason of any warranty or the inaccuracy of any representation made by any Borrower Party;
(ii) The failure by any Borrower Party to fulfill any of its covenants, agreements or undertakings under this Agreement or any other Loan Document (or any other document or instrument executed herewith or pursuant hereto);
(iii) Any third party actions, suits, proceedings or claims brought against any Indemnified Person with respect to (A) the Spin-Off or any of the transactions related thereto or contemplated thereby, (B) the Purchase Agreement or the transactions contemplated thereby, or (C) any item of Collateral or (D) the business, properties, operations or affairs of any Borrower Party or any of its Subsidiaries;
(iv) credit having been extended or not extended under this Agreement and the other Loan Documents;
(v) or otherwise in connection with or arising out of any act performed by any or all of them on behalf of the transactions contemplated hereunder Partnership, or thereunderin furtherance of its interests, including any Claim for Environmental Liabilities and Costs and legal costs and expenses reasonably believed by the indemnified Partner or Affiliate to be within the scope of disputes between the parties to authority specifically conferred on such Partner by this Agreement.
(b) In any suit, proceedingif any, or action brought by Lender relating and not contrary to any item of Collateral or any amount owing hereunderits terms. Except as otherwise specified herein, or to enforce any provision the satisfaction of any item of Collateral, Borrower indemnification hereunder shall save, indemnify, and hold harmless Lender be from and against all expenselimited to Partnership assets and no Partner shall have any personal liability on account thereof. A Partner indemnified hereunder shall notify the Partnership and the other Partners promptly of any claim, lossdemand, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by the other party or parties to such litigation and howsoever arising. All obligations right of Borrower or any of its Subsidiaries with respect to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and shall not be enforceable action made against Lender. This Section 10.3 shall survive the Termination Date.
(c) Any Person entitled to indemnification under this Section 10.3 shall (a) give prompt written notice to the Borrower of any claim with respect to it which it seeks indemnification (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations to the extent they are not substantially prejudiced thereby) and (b) permit the Borrower to assume the defense of such claim with counsel selected by the Borrower and reasonably acceptable to such Person; provided, however, that any Person entitled is subject to indemnification hereunder shall first have and provide the right to employ separate counsel and Partnership reasonable opportunity to participate in the defense thereof in conformity with the indemnity herein contained.
b. Each Partner shall indemnify, defend and hold the other Partner and its Affiliates and the Partnership harmless from any and all claims, causes of such claimaction, losses, damages, liabilities, costs or expenses (including, but not limited to, reasonable attorneys' fees), incurred by the fees and expenses other Partner, its Affiliates or the Partnership at any time by reason of or arising out of any act of the indemnifying Partner (whether taken by such counsel Partner or on its behalf by its Affiliates), which such Partner could not reasonably have believed to be within the scope of the authority specifically conferred on such indemnifying Partner by this Agreement, if any, or arising directly or indirectly out of any breach of this Agreement by, or the gross negligence, willful misconduct or fraud of, the indemnifying Partner. The preceding sentence notwithstanding, no Partner shall be at obligated to indemnify the expense other Partners or the Partnership for any claims, causes of such Person unless (i) the Borrower has agreed to pay such fees action, losses, damages, liabilities, costs or expenses incurred by the other Partners or the Partnership as a result of such counsel; (ii) acts or omissions of the Borrower has failed other Partners which constitute gross negligence, willful misconduct, or fraud.
c. The rights and obligations of the Partners and the Affiliates under this Section 4.9 shall survive the termination of the Partnership. The indemnities in favor of a Partner or an Affiliate contained in this Section 4.9 shall extend to notify such Person in writing within ten (10) days and benefit each representative of its receipt a Partner or an Affiliate. An indemnified party may not settle any action, proceeding or claim without the written consent of such written notice of claim that it will assume the defense of such claim and employ counsel reasonably satisfactory to such Person; orindemnifying party.
Appears in 1 contract
Indemnity Contribution. (a) Borrower and each of its Subsidiaries shall The Corporation agrees to indemnify and hold save harmless the Agents, their respective subsidiaries and affiliates and their respective directors, officers, employees, partners, agents, and shareholders, each other person, if any, controlling the Agents or any of their subsidiaries (collectively, the “Indemnified Person Parties”and individually, an “Indemnified Party”) from and against any Claim and all any and all losses (other than loss of profits), claims (including shareholder actions, derivative or otherwise), actions, suits, proceedings, damages or liabilities, joint or several, including the aggregate amount paid in settlement of any actions, suits, proceedings, investigations or claims, and the reasonable fees, expenses and taxes of their counsel (collectively, the “Losses”) that may be instituted incurred in investigating or asserted advising with respect to and/or defending or settling any action, suit, proceeding, investigation or claim that may be made or threatened against any Indemnified Party or incurred by in enforcing this indemnity (collectively, the “Claims”) or to which the Indemnified Parties may become subject or otherwise involved in any capacity insofar as such Indemnified Person as the result of, arising Losses or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Corporation by the Indemnified Parties or otherwise in connection withwith the matters referred to in this Agreement, including, without limitation, in any way caused by, or arising directly or indirectly from, or in consequence of:
(i) Any breach of any warranty information or the inaccuracy of any representation made statement (except information or statements relating solely to and provided in writing by any Borrower Partyof the Agents expressly for use in the Documents, the Preliminary, Prospectus, the Final Prospectus or any Supplementary Material) contained in the Transaction Documents, the Documents, the Preliminary, Prospectus, the Final Prospectus or any Supplementary Material, which at the time and in light of the circumstances under which it was made contains or is alleged to contain a misrepresentation or an untrue statement of a material fact;
(ii) The failure any omission or alleged omission to state in the Transaction Documents, the Documents, the Preliminary, Prospectus, the Final Prospectus or any Supplementary Material, or in any certificate of the Corporation delivered under or pursuant to this Agreement, any fact or information (whether material or not) (except facts relating solely to and provided in writing by any Borrower Party to fulfill any of its covenantsthe Agents expressly for use in the Documents, agreements or undertakings under this Agreement the Preliminary, Prospectus, the Final Prospectus or any other Loan Document (or any other Supplementary Material) required to be stated in such document or instrument executed herewith certificate or pursuant hereto)necessary to make any statement in such document or certificate not misleading in light of the circumstances under which it was made;
(iii) Any third party actions, suits, proceedings any inaccuracy of any representation or claims brought against any Indemnified Person with respect to (A) the Spin-Off or any warranty of the transactions related thereto or contemplated thereby, (B) the Purchase Corporation contained in this Agreement or the transactions contemplated therebyin any agreement, certificate or (C) any item of Collateral or (D) the business, properties, operations or affairs of any Borrower Party or any of its Subsidiariesother document delivered pursuant hereto;
(iv) credit having been extended or not extended under any breach by the Corporation of any covenant to be performed by it contained in this Agreement and the or in any agreement, certificate or other Loan Documentsdocument delivered pursuant hereto or thereto;
(v) the non-compliance or otherwise in connection alleged non-compliance by the Corporation with or arising out any requirement of Applicable Securities Laws relating to the sale of the transactions contemplated hereunder or thereunderSubscription Receipts, including the Corporation’s non-compliance with any Claim statutory requirement to make any document available for Environmental Liabilities and Costs and legal costs and expenses inspection; or
(vi) any order made or any inquiry, investigation or proceeding (formal or informal) instituted, threatened or announced by any court, securities regulatory authority, stock exchange or other competent authority (except any such proceeding or order based solely upon the activities of disputes between any of the parties Indemnified Parties) or any change of law or the interpretation or administration thereof which operates to this Agreementprevent or restrict the trading in or the distribution of the Subscription Receipts, the Underlying Securities, the Compensation Option Receipts, the Compensation Options or any underlying securities thereof, or any securities of the Corporation or any of them in any of the Offering Jurisdictions.
(b) In any suit, proceeding, or action brought by Lender relating to any item of Collateral or any amount owing hereunder, or to enforce any provision of any item of Collateral, Borrower shall save, indemnify, and hold harmless Lender from and against all expense, loss, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by the other party or parties to such litigation and howsoever arising. All obligations of Borrower or any of its Subsidiaries with respect to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and This indemnity shall not be enforceable against Lender. This Section 10.3 shall survive available to any Indemnified Party in relation to any Losses which are determined by a court of competent jurisdiction in a final judgement that has become non-appealable to have resulted primarily from the Termination DateIndemnified Party’s fraud or illegal act, gross negligence or wilful misconduct.
(c) Any Person entitled If a Claim is brought against an Indemnified Party or an Indemnified Party has received notice of the commencement of any investigation in respect of which indemnity may be sought against the Corporation, the Indemnified Party will give the Corporation prompt written notice of any such Claim of which the Indemnified Party has knowledge and the Corporation will undertake the investigation and defence thereof on behalf of the Indemnified Party, including the prompt employment of counsel acceptable to the Indemnified Parties affected, acting reasonably, and the payment of all expenses. Failure or delay by the Indemnified Party to so notify will not relieve the Corporation of its obligation of indemnification under this Section 10.3 shall (a) give prompt written notice to the Borrower of any claim with respect to which it seeks indemnification Agreement unless (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations only to the extent they are that) such failure or delay materially prejudices the defence of such Claim or results in a material increase in the liability which the Corporation would otherwise have under this indemnity had the Indemnified Parties not substantially prejudiced therebyso failed to give or delayed in giving the notice required hereunder.
(d) No admission of liability and no settlement, compromise or termination of any Claim will be made without the Corporation’s written consent and the written consent of the Indemnified Parties affected, such consents not to be unreasonably withheld or delayed.
(be) permit The Corporation shall be entitled, at its own expense, to participate in and, to the Borrower extent it may wish to do so, assume the defence thereof, provided such defence is conducted by experienced and competent counsel. Upon the Corporation notifying the Indemnified Parties in writing of its election to assume the defense of such claim with counsel selected defence and retaining counsel, the Corporation shall not be liable to the Indemnified Parties for any legal expenses subsequently incurred by the Borrower Indemnified Parties in connection with such defence. If such defence is assumed by the Corporation, the Corporation throughout the course thereof will provide copies of all relevant documentation to the Indemnified Parties, will keep the Indemnified Parties advised of the progress thereof and reasonably acceptable to such Person; providedwill discuss ·with the Indemnified Parties all significant actions proposed.
(f) Notwithstanding that the Corporation will undertake the investigation and defence of any Claim, however, that any Person entitled to indemnification hereunder shall first an Indemnified Party will have the right to employ separate counsel with respect to any Claim and to participate in the defense of such claimdefence thereof, but the fees and expenses of such counsel shall will be at the expense of the Indemnified Party unless:
(i) employment of such Person counsel has been authorized in writing by the Corporation;
(ii) the Corporation has not assumed the defence of the Claim within a reasonable period of time after receiving notice of the Claim;
(iii) the named parties to any such claim include both the Corporation and the Indemnified Party and the Indemnified Party has been advised by counsel to the Indemnified Party that there may be a conflict of interest between the Corporation and the Indemnified Party; or
(iv) there are one or more defences available to the Indemnified Party which are different from or in addition to those available to the Corporation such that that representation of both parties by the same counsel would be inappropriate for any reason, including without limitation because there may be legal defences available to the Indemnified Party which are different from or in addition to those available to the Corporation (in which event and to that extent, the Corporation shall not have the right to assume or direct the defence on the Indemnifisebedhalf)Party’ or that there is a conflict of interest between the Corporation and the Indemnified Party or the subject matter of the action, suit, proceeding, claim or investigation may not fall within the indemnity set forth herein (in either of which events the Corporation shall not have the right to assume or direct the defence on the Indemnifibeehadlf); Party’s in which case such fees and expenses of such counsel to the Indemnified Party will be for the Corporation’s account.
(g) The rights accorded to the Indemnified Parties under this Agreement will be in addition to any rights an Indemnified Party may have at common law or otherwise.
(h) The Corporation will not, without the Indemnified Party’s prior written consent, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought under this Agreement (whether or not any Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of each applicable Indemnified Party from liabilities arising out of such action, suit proceeding investigation or claim.
(i) The Corporation agrees that if any Claim shall be brought or commenced against the Corporation and/or any Indemnified Party and the personnel of such Indemnified Party shall be required to testify in connection therewith or shall be required to participate or respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Corporation by the Indemnified Parties, the Indemnified Party shall have the right to employ its own counsel in connection therewith, and the reasonable fees and expenses of such counsel as well as the reasonable costs (including an amount to reimburse the Indemnified Party for time spent by its personnel in connection therewith at their normal per diem rates together with such disbursements and reasonable out-of-pocket expenses incurred by the personnel of the Indemnified Party in connection therewith) shall, subject to the right of indemnity, be paid by the Corporation as they occur.
(j) If for any reason the foregoing indemnification is unavailable (other than in accordance with the terms hereof) to the Indemnified Parties (or any of them) or is insufficient to hold them harmless, the Corporation will contribute to the amount paid or payable by the Indemnified Parties as a result of such Claims in such proportion as is appropriate to reflect not only the relative benefits received by the Corporation or the Corporation’s shareholders on the one hand and the Indemnified Parties on the other, but also the relative fault of the parties and other equitable considerations which may be relevant; provided that the Agents shall not in any event be liable to contribute in the aggregate, any amounts in excess of the Agents’ Cpoaidmbmy ithesCsoripooratnion to the Agents and the Corporation shall be responsible for the balance, whether or not it has been sued. For avoidance of any doubt, the Corporation will in any event contribute to the amount paid or payable by the Indemnified Parties as a result of such Claim any amount in excess of the fees actually received by any Indemnified Parties under this Agreement.
(k) The Corporation hereby waives all rights which it may have by statute or common law to recover contribution from the Agents in respect of Losses, claims, costs, damages, expenses or liabilities which any of them may suffer or incur directly or indirectly (in this paragraph, “losses”) by reason of or in consequence of a document containing a misrepresentation; provided, however, that such waiver shall not apply in respect of losses by reason of or in consequence of any misrepresentation which is based upon or results from information or statements furnished by or relating solely to the Agents.
(l) In the event that the Corporation may be held to be entitled to contribution from the Agents under the provisions of any statute or law, or pursuant to the foregoing paragraph, the Corporation shall be limited to contribution in an amount not exceeding the lesser of: (i) the Borrower has agreed portion of the full amount of Losses, claims, costs, damages, expenses and liabilities, giving rise to pay such fees or expenses of such counselcontribution for which the Agents are responsible, as determined above; and (ii) the Borrower has failed amount of the Agents’ Commi Notwithstanding the foregoing, a party guilty of fraudulent misrepresentation shall not be entitled to contribution from the other party. Any party entitled to contribution will, promptly after receiving notice of commencement of any claim, action, suit or proceeding against such party in respect of which a claim for contribution may be made against the other party under this Section, notify such Person in writing within ten party from whom contribution may be sought. In no case shall such party from whom contribution may be sought be liable under this Agreement unless such notice has been provided, but the omission to so notify such party shall not relieve the party from whom contribution may be sought from any other obligation it may have otherwise than under this Section.
(10m) days The Corporation hereby constitutes the Lead Agent as trustee for each of its receipt the other Indemnified Parties of the Corporation’s covenants under this indemnity with respect to such persons and the Lead Agent agrees to accept such trust and to hold and enforce such covenants on behalf of such written notice persons.
(n) The indemnity and contribution obligations of claim that it will assume the defense Corporation shall be in addition to any liability which the Corporation may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties who are not signatories hereto and shall be binding upon and enure to the benefit of such claim any successors, assigns, heirs and employ counsel reasonably satisfactory to such Person; orpersonal representatives of the Corporation and the Indemnified Parties.
Appears in 1 contract
Samples: Agency Agreement
Indemnity Contribution. (a) Borrower The Note Issuer hereby covenants and each of its Subsidiaries shall indemnify agrees to indemnify, defend and hold harmless each the Delaware Trustee, the Certificate Trustee, the Agencies and any of their respective affiliates, officers, directors, employees and agents (the "Indemnified Person Persons") from and against any Claim and all losses, claims, taxes, damages, expenses (including, without limitation, legal fees and expenses) and liabilities (including liabilities under state or federal securities laws) of any kind and nature whatsoever (collectively, "Expenses"), to the extent that may be instituted such Expenses arise out of or are imposed upon or asserted against or incurred by any such Indemnified Person as the result of, arising out of or in connection with:
(i) Any breach of any warranty or the inaccuracy of any representation made by any Borrower Party;
(ii) The failure by any Borrower Party to fulfill any of its covenants, agreements or undertakings under this Agreement or any other Loan Document (or any other document or instrument executed herewith or pursuant hereto);
(iii) Any third party actions, suits, proceedings or claims brought against any Indemnified Person Persons with respect to (A) the Spin-Off creation, operation or any termination of the transactions related thereto Certificate Issuer, the execution, delivery or contemplated therebyperformance of the Declaration of Trust or the Certificate Indenture, (B) as the Purchase Agreement case may be, or the transactions contemplated thereby, or (C) any item the failure of Collateral or (D) the business, properties, operations or affairs of any Borrower Party Note Issuer or any other person (other than the person being indemnified) to perform its obligations hereunder; PROVIDED, HOWEVER, that the Note Issuer is not required to indemnify any Indemnified Person for any Expenses that result from the willful misconduct or gross negligence of its Subsidiaries;
(iv) credit having been extended such Indemnified Person. The obligations of the Note Issuer to indemnify the Indemnified Persons as provided herein shall survive the termination of the Declaration of Trust, the termination, satisfaction or not extended under this Agreement discharge of the Certificate Indenture and the other Loan Documents;
(v) resignation or otherwise in connection with or arising out removal of the transactions contemplated hereunder Delaware Trustee or thereunder, including any Claim for Environmental Liabilities and Costs and legal costs and expenses of disputes between the parties to this AgreementCertificate Trustee.
(b) In any suit, proceeding, or action brought by Lender relating [Contribution language to any item of Collateral or any amount owing hereunder, or to enforce any provision of any item of Collateral, Borrower shall save, indemnify, and hold harmless Lender from and against all expense, loss, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by the other party or parties to such litigation and howsoever arising. All obligations of Borrower or any of its Subsidiaries with respect to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and shall not be enforceable against Lender. This Section 10.3 shall survive the Termination Datecome.
(c) Any Person entitled to indemnification under this Section 10.3 shall (a) give prompt written notice to the Borrower of any claim with respect to which it seeks indemnification (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations to the extent they are not substantially prejudiced thereby) and (b) permit the Borrower to assume the defense of such claim with counsel selected by the Borrower and reasonably acceptable to such Person; provided, however, that any Person entitled to indemnification hereunder shall first have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (i) the Borrower has agreed to pay such fees or expenses of such counsel; (ii) the Borrower has failed to notify such Person in writing within ten (10) days of its receipt of such written notice of claim that it will assume the defense of such claim and employ counsel reasonably satisfactory to such Person; or]
Appears in 1 contract
Indemnity Contribution. (a) Borrower and each of its Subsidiaries shall The Corporation agrees to indemnify and hold save harmless the Agents, their respective subsidiaries and affiliates and their respective directors, officers, employees, partners, agents, and shareholders, each other person, if any, controlling the Agents or any of their subsidiaries (collectively, the “Indemnified Person Parties” and individually, an “Indemnified Party”) from and against any Claim and all any and all losses (other than loss of profits), claims (including shareholder actions, derivative or otherwise), actions, suits, proceedings, damages or liabilities, joint or several, including the aggregate amount paid in settlement of any actions, suits, proceedings, investigations or claims, and the reasonable fees, expenses and taxes of their counsel (collectively, the “Losses”) that may be instituted incurred in investigating or asserted advising with respect to and/or defending or settling any action, suit, proceeding, investigation or claim that may be made or threatened against any Indemnified Party or incurred by in enforcing this indemnity (collectively, the “Claims”) or to which the Indemnified Parties may become subject or otherwise involved in any capacity insofar as such Indemnified Person as the result of, arising Losses or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Corporation by the Indemnified Parties or otherwise in connection withwith the matters referred to in this Agreement, including, without limitation, in any way caused by, or arising directly or indirectly from, or in consequence of:
(i) Any breach of any warranty information or the inaccuracy of any representation made statement (except information or statements relating solely to and provided in writing by any Borrower Partyof the Agents expressly for use in the Documents, the Preliminary, Prospectus, the Final Prospectus or any Supplementary Material) contained in the Transaction Documents, the Documents, the Preliminary, Prospectus, the Final Prospectus or any Supplementary Material, which at the time and in light of the circumstances under which it was made contains or is alleged to contain a misrepresentation or an untrue statement of a material fact;
(ii) The failure any omission or alleged omission to state in the Transaction Documents, the Documents, the Preliminary, Prospectus, the Final Prospectus or any Supplementary Material, or in any certificate of the Corporation delivered under or pursuant to this Agreement, any fact or information (whether material or not) (except facts relating solely to and provided in writing by any Borrower Party to fulfill any of its covenantsthe Agents expressly for use in the Documents, agreements or undertakings under this Agreement the Preliminary, Prospectus, the Final Prospectus or any other Loan Document (or any other Supplementary Material) required to be stated in such document or instrument executed herewith certificate or pursuant hereto)necessary to make any statement in such document or certificate not misleading in light of the circumstances under which it was made;
(iii) Any third party actions, suits, proceedings any inaccuracy of any representation or claims brought against any Indemnified Person with respect to (A) the Spin-Off or any warranty of the transactions related thereto or contemplated thereby, (B) the Purchase Corporation contained in this Agreement or the transactions contemplated therebyin any agreement, certificate or (C) any item of Collateral or (D) the business, properties, operations or affairs of any Borrower Party or any of its Subsidiariesother document delivered pursuant hereto;
(iv) credit having been extended or not extended under any breach by the Corporation of any covenant to be performed by it contained in this Agreement and the or in any agreement, certificate or other Loan Documentsdocument delivered pursuant hereto or thereto;
(v) the non-compliance or otherwise in connection alleged non-compliance by the Corporation with or arising out any requirement of Applicable Securities Laws relating to the sale of the transactions contemplated hereunder or thereunderSubscription Receipts, including the Corporation’s non-compliance with any Claim statutory requirement to make any document available for Environmental Liabilities and Costs and legal costs and expenses inspection; or
(vi) any order made or any inquiry, investigation or proceeding (formal or informal) instituted, threatened or announced by any court, securities regulatory authority, stock exchange or other competent authority (except any such proceeding or order based solely upon the activities of disputes between any of the parties Indemnified Parties) or any change of law or the interpretation or administration thereof which operates to this Agreementprevent or restrict the trading in or the distribution of the Subscription Receipts, the Underlying Securities, the Compensation Option Receipts, the Compensation Options or any underlying securities thereof, or any securities of the Corporation or any of them in any of the Offering Jurisdictions.
(b) In any suit, proceeding, or action brought by Lender relating to any item of Collateral or any amount owing hereunder, or to enforce any provision of any item of Collateral, Borrower shall save, indemnify, and hold harmless Lender from and against all expense, loss, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by the other party or parties to such litigation and howsoever arising. All obligations of Borrower or any of its Subsidiaries with respect to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and This indemnity shall not be enforceable against Lender. This Section 10.3 shall survive available to any Indemnified Party in relation to any Losses which are determined by a court of competent jurisdiction in a final judgement that has become non-appealable to have resulted primarily from the Termination DateIndemnified Party’s fraud or illegal act, gross negligence or wilful misconduct.
(c) Any Person entitled If a Claim is brought against an Indemnified Party or an Indemnified Party has received notice of the commencement of any investigation in respect of which indemnity may be sought against the Corporation, the Indemnified Party will give the Corporation prompt written notice of any such Claim of which the Indemnified Party has knowledge and the Corporation will undertake the investigation and defence thereof on behalf of the Indemnified Party, including the prompt employment of counsel acceptable to the Indemnified Parties affected, acting reasonably, and the payment of all expenses. Failure or delay by the Indemnified Party to so notify will not relieve the Corporation of its obligation of indemnification under this Section 10.3 shall (a) give prompt written notice to the Borrower of any claim with respect to which it seeks indemnification Agreement unless (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations only to the extent they are that) such failure or delay materially prejudices the defence of such Claim or results in a material increase in the liability which the Corporation would otherwise have under this indemnity had the Indemnified Parties not substantially prejudiced therebyso failed to give or delayed in giving the notice required hereunder.
(d) No admission of liability and no settlement, compromise or termination of any Claim will be made without the Corporation’s written consent and the written consent of the Indemnified Parties affected, such consents not to be unreasonably withheld or delayed.
(be) permit The Corporation shall be entitled, at its own expense, to participate in and, to the Borrower extent it may wish to do so, assume the defence thereof, provided such defence is conducted by experienced and competent counsel. Upon the Corporation notifying the Indemnified Parties in writing of its election to assume the defense of such claim with counsel selected defence and retaining counsel, the Corporation shall not be liable to the Indemnified Parties for any legal expenses subsequently incurred by the Borrower Indemnified Parties in connection with such defence. If such defence is assumed by the Corporation, the Corporation throughout the course thereof will provide copies of all relevant documentation to the Indemnified Parties, will keep the Indemnified Parties advised of the progress thereof and reasonably acceptable to such Person; providedwill discuss ·with the Indemnified Parties all significant actions proposed.
(f) Notwithstanding that the Corporation will undertake the investigation and defence of any Claim, however, that any Person entitled to indemnification hereunder shall first an Indemnified Party will have the right to employ separate counsel with respect to any Claim and to participate in the defense of such claimdefence thereof, but the fees and expenses of such counsel shall will be at the expense of the Indemnified Party unless:
(i) employment of such Person counsel has been authorized in writing by the Corporation;
(ii) the Corporation has not assumed the defence of the Claim within a reasonable period of time after receiving notice of the Claim;
(iii) the named parties to any such claim include both the Corporation and the Indemnified Party and the Indemnified Party has been advised by counsel to the Indemnified Party that there may be a conflict of interest between the Corporation and the Indemnified Party; or
(iv) there are one or more defences available to the Indemnified Party which are different from or in addition to those available to the Corporation such that that representation of both parties by the same counsel would be inappropriate for any reason, including without limitation because there may be legal defences available to the Indemnified Party which are different from or in addition to those available to the Corporation (in which event and to that extent, the Corporation shall not have the right to assume or direct the defence on the Indemnified Party’s behalf) or that there is a conflict of interest between the Corporation and the Indemnified Party or the subject matter of the action, suit, proceeding, claim or investigation may not fall within the indemnity set forth herein (in either of which events the Corporation shall not have the right to assume or direct the defence on the Indemnified Party’s behalf); in which case such fees and expenses of such counsel to the Indemnified Party will be for the Corporation’s account.
(g) The rights accorded to the Indemnified Parties under this Agreement will be in addition to any rights an Indemnified Party may have at common law or otherwise.
(h) The Corporation will not, without the Indemnified Party’s prior written consent, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought under this Agreement (whether or not any Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of each applicable Indemnified Party from liabilities arising out of such action, suit proceeding investigation or claim.
(i) The Corporation agrees that if any Claim shall be brought or commenced against the Corporation and/or any Indemnified Party and the personnel of such Indemnified Party shall be required to testify in connection therewith or shall be required to participate or respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Corporation by the Indemnified Parties, the Indemnified Party shall have the right to employ its own counsel in connection therewith, and the reasonable fees and expenses of such counsel as well as the reasonable costs (including an amount to reimburse the Indemnified Party for time spent by its personnel in connection therewith at their normal per diem rates together with such disbursements and reasonable out-of-pocket expenses incurred by the personnel of the Indemnified Party in connection therewith) shall, subject to the right of indemnity, be paid by the Corporation as they occur.
(j) If for any reason the foregoing indemnification is unavailable (other than in accordance with the terms hereof) to the Indemnified Parties (or any of them) or is insufficient to hold them harmless, the Corporation will contribute to the amount paid or payable by the Indemnified Parties as a result of such Claims in such proportion as is appropriate to reflect not only the relative benefits received by the Corporation or the Corporation’s shareholders on the one hand and the Indemnified Parties on the other, but also the relative fault of the parties and other equitable considerations which may be relevant; provided that the Agents shall not in any event be liable to contribute in the aggregate, any amounts in excess of the Agents’ Commission paid by the Corporation to the Agents and the Corporation shall be responsible for the balance, whether or not it has been sued. For avoidance of any doubt, the Corporation will in any event contribute to the amount paid or payable by the Indemnified Parties as a result of such Claim any amount in excess of the fees actually received by any Indemnified Parties under this Agreement.
(k) The Corporation hereby waives all rights which it may have by statute or common law to recover contribution from the Agents in respect of Losses, claims, costs, damages, expenses or liabilities which any of them may suffer or incur directly or indirectly (in this paragraph, “losses”) by reason of or in consequence of a document containing a misrepresentation; provided, however, that such waiver shall not apply in respect of losses by reason of or in consequence of any misrepresentation which is based upon or results from information or statements furnished by or relating solely to the Agents.
(l) In the event that the Corporation may be held to be entitled to contribution from the Agents under the provisions of any statute or law, or pursuant to the foregoing paragraph, the Corporation shall be limited to contribution in an amount not exceeding the lesser of: (i) the Borrower has agreed portion of the full amount of Losses, claims, costs, damages, expenses and liabilities, giving rise to pay such fees or expenses of such counselcontribution for which the Agents are responsible, as determined above; and (ii) the Borrower has failed amount of the Agents’ Commission actually received by the Agents. Notwithstanding the foregoing, a party guilty of fraudulent misrepresentation shall not be entitled to contribution from the other party. Any party entitled to contribution will, promptly after receiving notice of commencement of any claim, action, suit or proceeding against such party in respect of which a claim for contribution may be made against the other party under this Section, notify such Person in writing within ten party from whom contribution may be sought. In no case shall such party from whom contribution may be sought be liable under this Agreement unless such notice has been provided, but the omission to so notify such party shall not relieve the party from whom contribution may be sought from any other obligation it may have otherwise than under this Section.
(10m) days The Corporation hereby constitutes the Lead Agent as trustee for each of its receipt the other Indemnified Parties of the Corporation’s covenants under this indemnity with respect to such persons and the Lead Agent agrees to accept such trust and to hold and enforce such covenants on behalf of such written notice persons.
(n) The indemnity and contribution obligations of claim that it will assume the defense Corporation shall be in addition to any liability which the Corporation may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties who are not signatories hereto and shall be binding upon and enure to the benefit of such claim any successors, assigns, heirs and employ counsel reasonably satisfactory to such Person; orpersonal representatives of the Corporation and the Indemnified Parties.
Appears in 1 contract
Samples: Agency Agreement
Indemnity Contribution. Indemnification in connection with the Registrations described in this Article X shall be on the terms set forth in this Section 10.07. To the extent that the Registrant in a Registration pursuant to this Section 10.07 is not the Partnership, the Partnership shall instruct the Registrant to enter into such separate indemnification agreements with the Limited Partners or their representatives as are necessary to implement this Section 10.07.
(a) Borrower The Registrant shall indemnify, to the fullest extent permitted by Law, each holder of Registrable Securities, its officers, directors, partners, managers, members and employees and agents and each Person who controls such holder within the meaning of its Subsidiaries shall indemnify Section 15 of the Securities Act, against all losses, claims, damages, liabilities, judgments, costs and hold harmless each Indemnified Person from and against any Claim that may be instituted or asserted against or incurred by any such Indemnified Person as the result of, expenses (including reasonable attorneys’ fees) arising out of or in connection with:
(i) Any breach resulting from any violation by the Registrant of any warranty or the inaccuracy provisions of any representation made by any Borrower Party;
(ii) The failure by any Borrower Party to fulfill any of its covenants, agreements or undertakings under this Agreement the Securities Act or any other Loan Document (untrue or alleged untrue statement of a material fact contained in any registration statement or prospectus or any other document amendment thereof or instrument executed herewith or pursuant hereto);
(iii) Any third party actions, suits, proceedings or claims brought against any Indemnified Person with respect to (A) the Spin-Off or any of the transactions related supplement thereto or contemplated thereby, (B) the Purchase Agreement or the transactions contemplated thereby, or (C) any item of Collateral or (D) the business, properties, operations or affairs of any Borrower Party or any of its Subsidiaries;
(iv) credit having been extended or not extended under this Agreement and the other Loan Documents;
(v) or otherwise in connection with or arising out of or resulting from any omission or alleged omission of a material fact required to be stated therein or necessary to make the transactions contemplated hereunder or thereunderstatements therein (in the case of any prospectus, including any Claim for Environmental Liabilities and Costs and legal in light of the circumstances under which they were made) not misleading, except to the extent that such losses, claims, damages, liabilities, judgments, costs and expenses arise out of disputes between or result from any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder of Registrable Securities furnished in writing to the parties Registrant by such holder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this AgreementArticle X is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Registrant to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article X is made through underwriters, the Registrant agrees to enter into an underwriting agreement in customary form with such underwriters and the Registrant agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that the Registrant shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was timely provided with sufficient copies of such amended or supplemented final prospectus.
(b) In connection with any suitregistration statement in which a holder of Registrable Securities is participating, proceedingeach such holder shall (i) furnish to the Registrant in writing such information as the Registrant reasonably requests for use in connection with any such registration statement or prospectus, or action brought amendment or supplement thereto and (ii) indemnify, to the fullest extent permitted by Lender relating to Law, the Registrant, each other holder of Registrable Securities, each underwriter and their respective officers, directors, partners, members, managers, employees and agents, and each Person, if any, who controls the Registrant, such other holder or such underwriter within the meaning of Section 15 of the Securities Act, against all losses, claims, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any item untrue statement or alleged untrue statement of Collateral a material fact contained in any registration statement or prospectus or any amount owing hereunder, amendment or supplement thereto or arising out of or resulting from any omission or alleged omission to enforce any provision state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any item prospectus, in light of Collateralthe circumstances under which they were made) not misleading, Borrower but only to the extent that such untrue statement is contained in or such omission is from information so concerning such holder furnished in writing to the Registrant by such holder expressly for use therein; provided that such holder’s obligations hereunder shall save, indemnify, and hold harmless Lender from and against all expense, loss, or damage suffered by reason of such action or any defense, setoff, or counterclaim asserted for any reason by be limited to an amount equal to the other party or parties net proceeds to such litigation and howsoever arising. All obligations holder in respect of Borrower or any of its Subsidiaries with respect the Registrable Securities sold pursuant to any item of Collateral shall be and remain enforceable against, and only against, Borrower or such Subsidiary, as the case may be, and shall not be enforceable against Lender. This Section 10.3 shall survive the Termination Dateregistration statement.
(c) Any Person entitled to indemnification under this Section 10.3 hereunder shall (ai) give prompt written notice to the Borrower indemnifying party of any claim with respect to which it seeks indemnification (and failure to give such notice shall not adversely affect the Borrower’s indemnification obligations to the extent they are not substantially prejudiced thereby) and (bii) permit the Borrower such indemnifying party to assume the defense of such claim claim, with counsel selected by reasonably satisfactory to the Borrower indemnified party; and reasonably acceptable if such defense is so assumed, such indemnifying party shall not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party and such Personindemnified party shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); providedand any underwriting agreement entered into with respect to any registration statement provided for under this Article X shall so provide. In the event an indemnifying party shall not be entitled, howeveror elects not, that any Person entitled to indemnification hereunder shall first have the right to employ separate counsel and to participate in assume the defense of such a claim, but such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties to be indemnified by such counsel shall be at the expense indemnifying party in respect of such Person claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.
(d) If for any reason the foregoing indemnity is due in accordance with the terms hereof but held by any court to be unavailable or unenforceable, then each indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities, costs or expenses (i) in such proportion as is appropriate to reflect the Borrower has agreed to pay such fees relative benefits received by the indemnifying party on the one hand and the indemnified party on the other or expenses of such counsel; (ii) if the Borrower has failed allocation provided by clause (i) above is not permitted by Law or provides a lesser sum to notify the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, costs or expenses as well as any other relevant equitable considerations. Notwithstanding the foregoing, no holder of Registrable Securities shall be required to contribute any amount in excess of the amount such holder would have been required to pay to an indemnified party if the indemnity under Section 10.07(b) was available. No Person in writing guilty of fraudulent misrepresentation (within ten the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The obligation of any Person to contribute pursuant to this Section 10.07(d) shall be several and not joint.
(10e) days An indemnifying party shall make payments of its all amounts required to be made pursuant to the foregoing provisions of this Section 10.07 to or for the account of the indemnified party from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 10.07 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person, its officers, directors, agents or controlling Persons, and shall survive the Transfer of Partnership Interests or Registrable Securities by such written notice holder and the termination of claim that it will assume the defense of such claim and employ counsel reasonably satisfactory to such Person; orthis Agreement for any reason.
Appears in 1 contract
