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Common use of Payment of Indemnification Clause in Contracts

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in the Joint Venture Agreement, and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, shall be paid directly into the Master Proceeds Account (as defined in the Senior Credit Agreement) of the Company. The Parties shall procure that as at and from the Closing Date, the Company irrevocably grants to the Security Agent (as defined in the Senior Credit Agreement) the right to claim, on behalf and for the account of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for any damages incurred by the Company under the Joint Venture Agreement, provided that such indemnification shall be paid into the Master Proceeds Account of the Company." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Joint Venture Agreement (Shurgard Storage Centers Inc)

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in (a) Expenses incurred by the Joint Venture Agreement, Indemnitee and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any subject to indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, Section 3 above shall be paid directly into by the Master Proceeds Account Corporation or reimbursed to the Indemnitee within two (2) days after the receipt of a written request of the Indemnitee providing that Indemnitee undertakes to repay any amount paid or advanced under this section to the extent that it is ultimately determined that Indemnitee is not entitled to such indemnification. (b) Except as otherwise provided in Section 4(a) above, any indemnification under Section 3 above shall be made no later than thirty (30) days after receipt by the Corporation of the written request of Indemnitee, unless within said 30-day period the board of directors, by a majority vote of a quorum consisting of directors who are not parties to such Proceeding, determines that the Indemnitee is not entitled to the indemnification set forth in Section 3 or unless the board of directors refers the Indemnitee's indemnification request to independent legal counsel. In cases where there are no directors who are not parties to the Proceeding, the indemnification request shall be referred to independent legal counsel. If the indemnification request is referred to independent legal counsel, then Indemnitee shall be paid no later than forty-five (45) days after Indemnitee's initial notice to the Corporation unless within that time independent legal counsel presents to the board of directors a written opinion stating in unconditional terms that indemnification is not allowed under Section 3 of this Agreement. If a Change in Control (as defined in Section 5) occurs and results in individuals who were directors prior to the Senior Credit Agreement) circumstances giving rise to the Change in Control ceasing for any reason to constitute a majority of the Companyboard of directors, the above determination, if any, shall be made by independent legal counsel and not the board of directors. The Parties shall procure that as at Corporation agrees to pay the reasonable fees of the independent legal counsel and from the Closing Dateto fully indemnify such counsel against any and all expenses (including attorneys' fees), the Company irrevocably grants claims, liabilities and damages arising out of or relating to the Security Agent (this Agreement or its engagement pursuant thereto. If there has not been a Change in Control as defined in Section 5, independent legal counsel shall be selected by the Senior Credit Agreementboard of directors or the executive committee of the board, and if there has been a Change in Control, the independent legal counsel shall be selected by Indemnitee. (c) the The right to claim, on behalf and for the account of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for any damages incurred payments as provided by the Company under the Joint Venture Agreement, provided that such indemnification this Agreement shall be paid into the Master Proceeds Account enforceable by Indemnitee in any court of the Company." Amendment to the Articles competent jurisdiction. The burden of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree proving that the third paragraph of Article 9 of the agreed Articles of Association indemnification is not permitted by this Agreement shall be brought in accordance with on the modification set out in Clause 2 above to read as follows: "Notwithstanding Corporation or on the foregoing and in deviation from Article 249, Section 2 of person challenging the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)-4-

Appears in 1 contract

Samples: Indemnification Agreement (Wolverine World Wide Inc /De/)

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in (a) Expenses incurred by the Joint Venture Agreement, Indemnitee and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any subject to indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, Section 3 above shall be paid directly into by the Master Proceeds Account Corporation or reimbursed to the Indemnitee within two (2) days after the receipt of a written request of the Indemnitee providing that Indemnitee undertakes to repay any amount paid or advanced under this section to the extent that it is ultimately determined that Indemnitee is not entitled to such indemnification. (b) Except as otherwise provided in Section 4(a) above, any indemnification under Section 3 above shall be made no later than thirty (30) days after receipt by the Corporation of the written request of Indemnitee, unless within said 30-day period the board of directors, by a majority vote of a quorum consisting of directors who are not parties to such Proceeding, determines that the Indemnitee is not entitled to the indemnification set forth in Section 3 or unless the board of directors refers the Indemnitee's indemnification request to independent legal counsel. In cases where there are no directors who are not parties to the Proceeding, the indemnification request shall be referred to independent legal counsel. If the indemnification request is referred to independent legal counsel, then Indemnitee shall be paid no later than forty-five (45) days after Indemnitee's initial notice to the Corporation unless within that time independent legal counsel presents to the board of directors a written opinion stating in unconditional terms that indemnification is not allowed under Section 3 of this Agreement. If a Change in Control (as defined in Section 5) occurs and results in individuals who were directors prior to the Senior Credit Agreement) circumstances giving rise to the Change in Control ceasing for any reason to constitute a majority of the Companyboard of directors, the above determination, if any, shall be made by independent legal counsel and not the board of directors. The Parties shall procure that as at Corporation agrees to pay the reasonable fees of the independent legal counsel and from the Closing Dateto fully indemnify such counsel against any and all expenses (including attorneys' fees), the Company irrevocably grants claims, liabilities and damages arising out of or relating to the Security Agent (this Agreement or its engagement pursuant thereto. If there has not been a Change in Control as defined in Section 5, independent legal counsel shall be selected by the Senior Credit board of directors or the executive committee of the board, and if there has been a Change in Control, the independent legal counsel shall be selected by Indemnitee. (c) The right to indemnification payments as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not permitted by this Agreement shall be on the Corporation or on the person challenging the indemnification. Neither the failure of the Corporation, including its board of directors, to have made a determination prior to the commencement of any Proceeding that indemnification is proper, nor an actual determination by the Corporation, including its board of directors or independent legal counsel, that indemnification is not proper, shall bar the action or create a presumption that -4- Indemnitee is not entitled to indemnification under this Agreement. If the board of directors or independent legal counsel determines in accordance with Section 4(b) above that Indemnitee would not be permitted to be indemnified in whole or in part, Indemnitee shall have the right to claimcommence litigation in any court in the states of Michigan or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the board of directors or independent legal counsel, on behalf and for the account Corporation hereby consents to service of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for process and to appear in any damages such proceeding. Expenses incurred by Indemnitee in connection with successfully establishing Indemnitee's right to indemnification, in whole or in part, shall also be reimbursed by the Company under the Joint Venture Agreement, provided that such indemnification shall be paid into the Master Proceeds Account of the CompanyCorporation." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Indemnification Agreement (Wolverine World Wide Inc /De/)

Payment of Indemnification. (a) The Parties agree Company shall pay or reimburse Indemnitee all Expenses and Resolution Costs for which Indemnitee is entitled to indemnification under Section 3, upon written demand for such payment or reimbursement from Indemnitee, promptly if, when and to the extent that Clause 17.1 is inserted a determination has been made, or deemed to have been made, in the Joint Venture Agreementmanner provided in this Section 4 that Indemnitee is entitled to indemnification under Section 3. (b) A determination as to whether or not Indemnitee is entitled to indemnification shall be made, no later than 30 days after receipt by the Company of a written demand of Indemnitee for such payment or reimbursement, by: (i) a majority vote of a quorum of directors who are not parties or threatened to be made parties to such Proceeding; (ii) if a quorum cannot be obtained under subsection (i), a majority vote of a committee of two or more directors, duly designated by the board, who are not parties or threatened to be made parties to such Proceeding; or (iii) if a quorum as described in subsection (i) cannot be obtained and a committee as described in subsection (ii) cannot be designated, the board of directors shall select independent legal counsel. If such determination is not referred to independent legal counsel, the board of directors, or committee provided in this subsection, shall be deemed to have made a determination that Indemnitee is entitled to Indemnification under Section 3 and that the subsequent Clauses Expenses and Resolution Costs are reasonable, unless within that 30 day period, such board or committee determines, in writing and in unconditional terms, that indemnification is not allowed under Section 3 of this Agreement or that a specified portion of such Expenses and Resolution Costs are not reasonable. Except as provided in Subsection 4(c), if the determination made under Section 4 is to be made by independent legal counsel then the independent legal counsel shall be selected by (x) a majority vote of a quorum of the Joint Venture Agreement board of directors who are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any indemnification not parties or any other sum due by Shurgard or Luxco threatened to be made parties to the Company Proceeding; (y) if a quorum cannot be obtained under subsection (x), a majority vote of two or more directors, duly designated by the Joint Venture Agreementboard, who are not parties or threatened to be made parties to such Proceeding; or (z) if a quorum as described in subsection (x) cannot be obtained and a committee as described in subsection (y) cannot be designated, the board of directors shall be paid directly into the Master Proceeds Account select independent legal counsel. (c) If a Change in Control (as defined in Section 1(d)) has occurred and the Senior Credit AgreementContinuing Directors do not constitute a majority of the Board of Directors, the determination made under Section 4 shall be made by independent legal counsel and not the board of directors or a committee of the board of directors. If a Change in Control has occurred, independent legal counsel shall be selected by Indemnitee. The Company shall pay the reasonable fees of the independent legal counsel and fully indemnify such counsel against any and all expense (including attorney fees), claims, liabilities, and damages arising out of or relating to this Agreement or its engagement pursuant thereto. -5- (d) of If the indemnification demand is referred to independent legal counsel under this Section 4, a determination as to whether or not Indemnitee is entitled to indemnification shall be made no later than 45 days after Indemnitee's initial demand to the Company. The Parties Independent legal counsel shall procure be deemed to have made a determination that indemnification is allowed under Section 3 of this Agreement and that the Expenses and Resolution Costs are reasonable, unless within that 45 day period, independent legal counsel presents to the Company's board of directors a written opinion stating in unconditional terms that Indemnitee is not entitled to indemnification under Section 3 of this Agreement or that a specified portion of such Expenses and Resolution Costs are not reasonable. (e) If the Company has not made a determination as at and from to whether or not indemnification is allowed under Section 3 within the Closing Date30 day period (or 45 day period if referred to independent legal counsel) prescribed in Section 4, the Company irrevocably grants shall be deemed to have made a determination that Indemnitee is entitled to indemnification under Section 3 and that the Security Agent Expenses and Resolution Costs are reasonable. (f) The right to indemnification payments as defined provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction in the Senior Credit Agreement) State of Michigan and in which venue is proper. The burden of proving that indemnification is not required or permitted by this Agreement shall be on the right to claim, Company or on behalf and for any Person challenging the account indemnification. Neither the failure of the Company, following including its board of directors, committees, or legal counsel, to have made a determination prior to the commencement of any Proceeding that indemnification is proper nor an Event actual determination by the Company, including its board of Default directors, committee or independent legal counsel, that indemnification is not proper, shall bar an action by Indemnitee to enforce this Agreement or create a presumption that Indemnitee is not entitled to indemnification under this Agreement. If the Senior Credit Agreementboard of directors, indemnification for committee or independent legal counsel determines in accordance with Section 4 that Indemnitee would not be permitted to be indemnified in whole or in part, Indemnitee shall have the right to commence litigation in any damages court of competent jurisdiction in the State of Michigan and in which venue is proper seeking an independent determination by the court or challenging any such determination by the board of directors, committee, or independent legal counsel, and the Company hereby consents to service of process and to appear in any such proceeding. Expenses incurred by the Company under the Joint Venture AgreementIndemnitee in connection with successfully establishing Indemnitee's right to indemnification, provided that such indemnification in whole or in part, shall also be paid into the Master Proceeds Account of or reimbursed by the Company." Amendment (g) Indemnitee shall not participate in any way in the board of directors' or committees' discussion and approval of indemnification under this Section 4. However, Indemnitee may present Indemnitee's request to the Articles board of Association of First Shurgard SPRL (Schedule 1.1.1 directors and respond to any inquiries concerning Indemnitee's involvement in the circumstances giving rise to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares administrative proceeding or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)civil action. -6-

Appears in 1 contract

Samples: Indemnification Agreement (Spartan Motors Inc)

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in (a) Expenses incurred by the Joint Venture Agreement, Indemnitee and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any subject to indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, Section 3 above shall be paid directly into by the Master Proceeds Account Company or reimbursed to the Indemnitee within two (as defined in 2) days after the Senior Credit Agreement) receipt of a written request of the CompanyIndemnitee providing that Indemnitee undertakes to repay any amount paid or advanced under this Section to the extent that it is ultimately determined that Indemnitee is not entitled to indemnification under Section 3. (b) Except as otherwise provided in Section 4(a) above, any indemnification under Section 3 above shall be made no later than thirty (30) days after receipt by the Company of the written request of Indemnitee, unless within that 30-day period the Board of Directors, by a majority vote of a quorum consisting of directors who are not parties to the Proceeding, determines that the Indemnitee is not entitled to the indemnification set forth in Section 3 or unless the Board of Directors refers the Indemnitee's indemnification request to independent legal counsel. In cases where there are no directors who are not parties to the Proceeding, the indemnification request shall be referred to independent legal counsel. If the indemnification request is referred to independent legal counsel, then Indemnitee shall be paid no later than forty-five (45) days after Indemnitee's initial request to the Company unless within that time independent legal counsel presents to the Board of Directors a written opinion stating in unconditional terms that indemnification is not allowed under Section 3 of this Agreement. If a Change in Control occurs and results in individuals who were directors before the circumstances giving rise to the Change in Control ceasing for any reason to constitute a majority of the Board of Directors, the above determination, if any, shall be made by independent legal counsel and not the Board of Directors. The Parties Company agrees to pay the reasonable fees of the independent legal counsel and to fully indemnify that counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant to this Agreement. If there has not been a Change in Control, independent legal counsel shall procure that as at be selected by the Board of Directors, and from the Closing Dateif there has been a Change in Control, the Company irrevocably grants to the Security Agent independent legal counsel shall be selected by Indemnitee. (as defined in the Senior Credit Agreementc) the The right to claim, indemnification payments as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not permitted by this Agreement shall be on behalf and for the account Company or on the person challenging the indemnification. Neither the failure of the Company, following including its Board of Directors, to have made a determination prior to the commencement of any Proceeding that indemnification is proper, nor an Event actual determination by the Company, including its Board of Default Directors or independent legal counsel, that indemnification is not proper, shall bar an action by Indemnitee to enforce this Agreement or create a presumption that Indemnitee is not entitled to indemnification under this Agreement. If the Senior Credit AgreementBoard of Directors or independent legal counsel determines in accordance with Section 4(b) above that Indemnitee would not be permitted to be indemnified in whole or in part, indemnification for Indemnitee shall have the right to commence litigation in any damages court in the State of Michigan having subject matter jurisdiction and that venue is proper seeking an independent determination by the court or challenging the determination by the Board of Directors or independent legal counsel, and the Company hereby consents to service of process and to appear in that Proceeding. Expenses incurred by the Company under the Joint Venture AgreementIndemnitee in connection with successfully establishing Indemnitee's right to indemnification, provided that such indemnification in whole or in part, shall also be paid into the Master Proceeds Account of reimbursed by the Company." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Indemnification Agreement (Miller Exploration Co)

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in the Joint Venture Agreement, and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads (a) Any indemnification owing pursuant to this Article 6 by any Seller shall be paid as follows: "The Parties agree that(i) first, as a general rule, any indemnification or any other sum due by Shurgard or Luxco to the Company under extent there are sufficient funds in the Joint Venture Escrowed Cash, by release of funds to the Purchaser Indemnified Persons from the Escrow Account in accordance with the terms and conditions of the Escrow Agreement, shall be paid directly into (ii) second, to the Master Proceeds Account (as defined extent there are sufficient Escrowed Shares in the Senior Credit Agreement) Escrowed Shares Account, by release of the Company. The Parties shall procure that as at and Escrowed Shares from the Closing Date, the Company irrevocably grants Escrowed Shares Account to the Security Agent (as defined in the Senior Credit Agreement) the right to claim, on behalf and for the account of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for any damages incurred by the Company under the Joint Venture Agreement, provided that such indemnification shall be paid into the Master Proceeds Account of the Company." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought Purchaser in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing terms and in deviation from Article 249, Section 2 conditions of the Companies CodeEscrow Agreement, and (iii) third, to the shares may only extent the Escrowed Cash and Escrowed Shares in the Escrow Account are insufficient to pay any remaining sums due to the Purchasers Indemnified Persons, by payment by such Seller of any such amount by wire transfer of immediately available funds to the Purchaser Indemnified Persons, within five (5) Business Days after the determination of the amount of such losses thereof. (b) Except as otherwise required by applicable Law, any payment on account of Damages made by any Seller as an Indemnifying Party pursuant to Article 6 (including without limitation any payment made by release or cancellation of Escrowed Shares to the Purchaser) will constitute a dollar-for-dollar decrease of the Purchase Consideration and any payment made by Purchaser as an Indemnifying Party pursuant to this Article 6 will constitute a dollar-for-dollar increase of the Purchase Consideration. (c) Any indemnification owing pursuant to this Article 6 by any Seller to Purchaser Indemnified Persons shall be freely transferred reduced by the amount of any insurance proceeds or payments from responsible third parties actually received by the Purchaser Indemnified Persons in connection therewith (net of any costs incurred by the Purchaser Indemnified Person to obtain any such insurance proceeds or third party payments and net of any deductible and any increase in the annual insurance premium of said insurance policies for any subsequent period resulting from the filing and collection of such insurance claim); provided, however, that such reduction shall not preclude or be a precondition to the right of the Purchaser Indemnified Persons to make any claims pursuant to the indemnity provisions of this Article 6. (d) All indemnity obligations under this Article 6 for shall be (i) reduced by any Tax Benefits actually realized by any party seeking indemnification hereunder arising from the matter giving rise to indemnification in the taxable year such matter occurred or the two successive taxable years following the taxable year such matter occurred, and (ii) increased to take account of any net Tax cost incurred by the Indemnified Person arising from the receipt of indemnity payments hereunder (grossed up for such increase). The amount for which the Purchaser is entitled to be indemnified under Article 6 shall not be reduced by the amount of any loss, credit, deduction or other Tax attribute incurred or generated in a Tax period that is not a Pre-Closing Tax Period. For these purposes, a “Tax Benefit” means the amount by which the Tax liability of the Indemnified Person actually is reduced by a deduction, reduction of income or entitlement to refund or credit. (e) If any Governmental Authority is entitled to take collection action in respect of any claim in respect of Taxes in connection with which Purchaser asserts any right of indemnity against Sellers, notwithstanding the defense relating thereto, or if an amount has to be paid in order to advance the claim in respect of Taxes, Sellers shall pay or cause to be paid such amount that is subject to such collection action or that is required to be so paid to the relevant Governmental Authority within the time required by applicable Law. (f) Upon the occurrence of a Tax indemnification event, (i) to the shareholders extent that the total of the same class amounts previously paid by the Sellers in respect of shares or the relevant Indemnified Taxes is less than the amount so determined to be the amount of the Indemnified Taxes, the Sellers shall forthwith (and, in any event, within fifteen (15) days of the time that the Purchaser notifies the Sellers of the occurrence of the Tax indemnification event) pay to Purchaser the amount of the Indemnified Taxes less the total of the amounts previously paid, and (ii) by a shareholder to an Affiliated Company (as defined in Article 11 the extent that the total of the Companies Code) amounts previously paid by the Sellers in respect of such shareholder, provided that Indemnified Taxes exceeds the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases amount so determined to be an Affiliated Company the amount of the Indemnified Taxes, Purchaser shall forthwith upon receipt or confirmation of any refund or credit of such shareholder Indemnified Taxes (and, in any event, within fifteen (15) days of the receipt or (iiiconfirmation of such refund or credit) by all shareholders jointly pay to the Security AgentSellers the amount of such refund or credit (including any interest paid or credited with respect thereto but net of any Taxes payable by the Purchaser in respect of such refund, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"or interest), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Share Purchase Agreement (Village Farms International, Inc.)

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted (a) Notwithstanding anything in contrary in this Article 11, no payment for indemnification of Losses in respect of Direct Claims shall be made by the Joint Venture Agreement, and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree thatVendors or West Pacific, as a general ruleapplicable, any indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, shall be paid directly into the Master Proceeds Account (as defined in the Senior Credit Agreement) of the Company. The Parties shall procure that as at and from the Closing Date, the Company irrevocably grants Indemnified Party pursuant to the Security Agent (as defined in the Senior Credit Agreement) the right to claim, on behalf and for the account of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for any damages incurred by the Company under the Joint Venture Agreement, provided that such indemnification shall be paid into the Master Proceeds Account of the Company." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred this Agreement until (i) to an arbitral award is issued against Purchaser’s Indemnified Persons or Vendors’ Indemnified Persons, as the shareholders of the same class of shares case may be; or (ii) Vendors and West Pacific agree, in writing, that such indemnity is certain and due by one Party to the other, as applicable. (b) Notwithstanding anything to the contrary in this Article 11, no payment for indemnification of Losses in respect of Third Party Claims shall be made by the Vendors or West Pacific, as applicable, to the Indemnified Party pursuant to this Agreement until a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholderfinal non-appealable decision is issued, provided however, that the Affiliated Company undertakes an Indemnified Party will be entitled to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company receive payment for indemnification of such shareholder or (iii) by all shareholders jointly Losses without a final non-appealable decision only and to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as followsextent that: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou the court or authority with jurisdiction over the matter giving rise to the payment for indemnification expressly compels payment of such Third Party Claim as a legal requirement or (ii) par un actionnaire à une Société Liée where the Indemnified Party is entitled to settle, compromise or discharge such Third Party Claim pursuant to Section 11.5. (tel que ce terme est défini à l'article 11 du Code des sociétésc) de cet actionnaireAn Indemnifying Party shall make payment of any Losses that it is required to indemnify within 30 days as from the date it became due under items (a) and (b) of this Section 11.6 by wire transfer of immediately available funds. The Parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such period, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agentany amount payable shall accrue interest at a rate of to 1.5%, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continuecompounded monthly." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Business Combination Agreement

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in (a) Expenses incurred by the Joint Venture Agreement, Indemnitee and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any subject to indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, Section 3 above shall be paid directly into by Xxxxxxxx or reimbursed to the Master Proceeds Account Indemnitee within two (2) days after the receipt of a written request of the Indemnitee providing that Indemnitee undertakes to repay any amount paid or advanced under this Section to the extent that it is ultimately determined that Indemnitee is not entitled to such indemnification. (b) Except as otherwise provided in Section 4(a) above, any indemnification under Section 3 above shall be made no later than thirty (30) days after receipt by Xxxxxxxx of the written request of Indemnitee, unless within said thirty (30) day period the Board of Directors, by a majority vote of a quorum consisting of directors who are not parties to such Proceeding, determines that the Indemnitee is not entitled to the indemnification set forth in Section 3 or unless the Board of Directors refers the Indemnitee's indemnification request to independent legal counsel. In cases where there are no directors who are not parties to the Proceeding, the indemnification request is referred to independent legal counsel. If the indemnification request is referred to independent legal counsel, then Indemnitee shall be paid no later than forty-five (45) days after Indemnitee's initial request to Hastings unless within that time independent legal counsel presents to the Board of Directors a written opinion stating in unconditional terms that indemnification is not allowed under Section 3 of this Agreement. If a Change in Control (as defined in Section 5) occurs and results in individuals who were directors prior to the Senior Credit Agreement) circumstances giving rise to the Change in Control ceasing for any reason to constitute a majority of the Company. The Parties shall procure that as at and from the Closing DateBoard of Directors, the Company irrevocably grants above determination, if any, shall be made by independent legal counsel and not the Board of Directors. Xxxxxxxx agrees to pay the Security Agent reasonable fees of the independent legal and to fully indemnify such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant thereto. If there has not been a Change in Control as defined in Section 5, independent legal counsel shall be selected by the Senior Credit Board or Directors or the executive committee of the board, and if there has been a Change in Control, the independent legal counsel shall be selected by Indemnitee. (c) The right to indemnification payments as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not permitted by this Agreement shall be on Hastings or on the person challenging the indemnification. Neither the failure of Hastings, including its Board of Directors, to have made a determination prior to the commencement of any Proceeding that indemnification is proper, nor an actual determination by Xxxxxxxx, including its Board of Directors or independent legal counsel, that indemnification is not proper, shall bar an action by Indemnitee to enforce this Agreement or create a presumption that Indemnitee is not entitled to indemnification under this Agreement. If the Board of Directors or independent legal counsel determines in accordance with Section 4(b) above that Indemnitee would not be permitted to be indemnified in whole or in part, Indemnitee shall have the right to claimcommence litigation in any court in the State of Michigan having subject matter jurisdiction thereof and in which venue is proper seeking an independent determination by the court or challenging any such determination by the Board of Directors or independent legal counsel, on behalf and for the account Xxxxxxxx hereby consents to service of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for process and to appear in any damages such proceeding. Expenses incurred by the Company under the Joint Venture AgreementIndemnitee in connection with successfully establishing Indemnitee's right to indemnification, provided that such indemnification in whole or in part, shall also be paid into the Master Proceeds Account of the Companyreimbursed by Xxxxxxxx." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Indemnity Agreement (Hastings Manufacturing Co)

Payment of Indemnification. The Parties agree that Clause 17.1 is inserted in (a) Expenses incurred by the Joint Venture Agreement, Indemnitee and that the subsequent Clauses of the Joint Venture Agreement are renumbered as a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any subject to indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, Section 3 above shall be paid directly into by the Master Proceeds Account Corporation or reimbursed to the Indemnitee within two (2) days after the receipt of a written request of the Indemnitee providing that Indemnitee undertakes to repay any amount paid or advanced under this Section to the extent that it is ultimately determined that Indemnitee is not entitled to such indemnification. (b) Except as otherwise provided in Section 4(a) above, any indemnification under Section 3 above shall be made no later than thirty (30) days after receipt by the Corporation of the written request of Indemnitee, unless within said 30-day period the Board of Directors, by a majority vote of a quorum consisting of Directors who are not parties to such Proceeding, determines that the Indemnitee is not entitled to the indemnification set forth in Section 3 or unless the Board of Directors refers the Indemnitee's indemnification request to independent legal counsel. In cases where there are no Directors who are not parties to the Proceeding, the indemnification request shall be referred to independent legal counsel. If the indemnification request is referred to independent legal counsel, then Indemnitee shall be paid no later than forty-five (45) days after Indemnitee's initial notice to the Corporation unless within that time independent legal counsel presents to the Board of Directors a written opinion stating in unconditional terms that indemnification is not allowed under Section 3 of this Agreement. If a Change in Control (as defined in Section 5) occurs and results in individuals who were Directors prior to the Senior Credit Agreement) circumstances giving rise to the Change in Control ceasing for any reason to constitute a majority of the CompanyBoard of Directors, the above determination, if any, shall be made by independent legal counsel and not the Board of Directors. The Parties shall procure that as at Corporation agrees to pay the reasonable fees of the independent legal counsel and from the Closing Dateto fully indemnify such counsel against any and all expenses (including attorneys' fees), the Company irrevocably grants claims, liabilities and damages arising out of or relating to the Security Agent (this Agreement or its engagement pursuant thereto. If there has not been a Change in Control as defined in Section 5, independent legal counsel shall be selected by the Senior Credit Board of Directors or the executive committee of the board, and if there has been a Change in Control, the independent legal counsel shall be selected by Indemnitee. (c) The right to indemnification payments as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not permitted by this Agreement shall be on the Corporation or on the person challenging the indemnification. Neither the failure of the Corporation, including its Board of Directors, to have made a determination prior to the commencement of any Proceeding that indemnification is proper, nor an actual determination by the Corporation, including its Board of Directors or independent legal counsel, that indemnification is not proper, shall bar the action or create a presumption that Indemnitee is not entitled to indemnification under this Agreement. If the Board of Directors or independent legal counsel determines in accordance with Section 4(b) above that Indemnitee would not be permitted to be indemnified in whole or in part, Indemnitee shall have the right to claimcommence litigation in any court in the State of Michigan having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Board of Directors or independent legal counsel, on behalf and for the account Corporation hereby consents to service of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for process and to appear in any damages such proceeding. Expenses incurred by Indemnitee in connection with successfully establishing Indemnitee's right to indemnification, in whole or in part, shall also be reimbursed by the Company under the Joint Venture Agreement, provided that such indemnification shall be paid into the Master Proceeds Account of the CompanyCorporation." Amendment to the Articles of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuing." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Indemnification Agreement (Manatron Inc)

Payment of Indemnification. (a) The Parties agree Corporation shall pay or reimburse Indemnitee all Expenses and Resolution Costs for which Indemnitee is entitled to indemnification under Section 3, upon written demand for such payment or reimbursement from the Indemnitee, promptly if, when and to the extent that Clause 17.1 is inserted a determination has been made, or deemed to have been made, in the Joint Venture Agreementmanner provided in this Section 4 that Indemnitee is entitled to indemnification under Section 3. (b) A determination as to whether or not Indemnitee is entitled to indemnification shall be made, no later than 30 days after receipt by the Corporation of a written demand of Indemnitee for such payment or reimbursement, by: (i) a majority vote of a quorum of directors who are not parties or threatened to be made parties to such Proceeding; (ii) if a quorum cannot be obtained under subsection (i), a majority vote of a committee of two or more directors, duly designated by the board, who are not parties or threatened to be made parties to such Proceeding; or (iii) if there are no directors who are not parties to the Proceeding, independent legal counsel selected by the board. If such determination is not referred to independent legal counsel, the board of directors, or committee provided in this subsection, shall be deemed to have made a determination that the Indemnitee is entitled to Indemnification under Section 3 and that the subsequent Clauses Expenses and Resolution Costs are reasonable, unless such board or committee determines, in writing and in unconditional terms, that indemnification is not allowed under Section 3 of the Joint Venture this Agreement or that a specified portion of such Expenses and Resolution Costs are renumbered as not reasonable. (c) If a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, shall be paid directly into the Master Proceeds Account Change in Control (as defined in Section 1 (d)) has occurred, the Senior Credit Agreement) determination made under Section 4 shall be made by independent legal counsel and not the board of directors or a committee of the Companyboard of directors. If there has been a Change in Control, independent legal counsel shall be selected by Indemnitee. The Parties Corporation shall procure pay the reasonable fees of the independent legal counsel and fully indemnify such counsel against any and all expense (including attorney fees), claims, liabilities, and damages arising out of or relating to this Agreement or its engagement pursuant thereto. (d) If the indemnification demand is referred to independent legal counsel under this Section 4, a determination as to whether or not Indemnitee is entitled to indemnification shall be made no later than 45 days after Indemnitee's initial demand to the Corporation. Independent legal counsel shall be deemed to have made a determination that indemnification is allowed under Section 3 of this Agreement and that the Expenses and Resolution Costs are reasonable, unless within that time independent legal counsel presents to the Corporation's board of directors a written opinion stating in unconditional terms that Indemnitee is not entitled to indemnification under Section 3 of this Agreement or that a specified portion of such Expenses and Resolution Costs are not reasonable. (e) If the Corporation has not made a determination as at and from to whether or not indemnification is allowed under Section 3 within the Closing Date30 day period (or 45 day period if referred to independent legal counsel) prescribed in Section 4, the Company irrevocably grants Corporation, shall be deemed to have made a determination that Indemnitee is entitled to indemnification under Section 3 and that the Expenses and Resolution Costs are reasonable. (f) The right to indemnification payments as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not required or permitted by this Agreement shall be on the Corporation or on the person challenging the indemnification. Neither the failure of the Corporation, including its board of directors, committee, or legal counsel to have made a determination prior to the Security Agent (as defined commencement of any Proceeding that indemnification is proper, nor an actual determination by the Corporation, including its board of directors, committee, or independent legal counsel, that indemnification is not proper, shall bar an action by Indemnitee to enforce this Agreement or create a presumption that Indemnitee is not entitled to indemnification under this agreement. If the board of directors, committee, or independent legal counsel determines in the Senior Credit Agreement) accordance with Section 4 above that Indemnitee would not be permitted to be indemnified in whole or in part, Indemnitee shall have the right to claimcommence litigation in any court in the State of Michigan having subject matter jurisdiction thereof and in which venue is proper seeking an independent determination by the court or challenging. any such determination by the board of directors, on behalf committee, or independent legal counsel, and for the account Corporation hereby consents to service of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for process and to appear in any damages such proceeding. Expenses incurred by the Company under the Joint Venture AgreementIndemnitee in connection with successfully establishing Indemnitee's right to indemnification, provided that such indemnification in whole or in part, shall also be paid into or reimbursed by the Master Proceeds Account Corporation. (g) Indemnitee shall not participate in any way in the board of the Company." Amendment to the Articles directors' or committees' discussion and approval of Association of First Shurgard SPRL (Schedule 1.1.1 to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249indemnification under this Section 4. However, Section 2 of the Companies Code, the shares Indemnitee may only be freely transferred (i) to the shareholders participate in designation of the same class a committee or a selection of shares or independent legal counsel under Subsection 4(b) and (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly present Indemnitee's request to the Security Agent, as such term has been defined board of directors and respond to any inquiries concerning Indemnitee's involvement in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant circumstances giving rise to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuingadministrative proceeding or civil action." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

Appears in 1 contract

Samples: Indemnification Agreement (Autocam Corp/Mi)

Payment of Indemnification. (a) The Parties agree Corporation shall pay or reimburse Indemnitee all Expenses and Resolution Costs for which Indemnitee is entitled to indemnification under Section 3, upon written demand for such payment or reimbursement from the Indemnitee, promptly if, when and to the extent that Clause 17.1 is inserted a determination has been made, or deemed to have been made, in the Joint Venture Agreementmanner provided in this Section 4 that Indemnitee is entitled to indemnification under Section 3. -4- (b) A determination as to whether or not Indemnitee is entitled to indemnification shall be made, no later than 30 days after receipt by the Corporation of a written demand of Indemnitee for such payment or reimbursement, by: (i) a majority vote of a quorum of directors who are not parties or threatened to be made parties to such Proceeding; (ii) if a quorum cannot be obtained under subsection (i), a majority vote of a committee of two or more directors, duly designated by the board, who are not parties or threatened to be made parties to such Proceeding; or (iii) if there are no directors who are not parties to the Proceeding, independent legal counsel selected by the board. If such determination is not referred to independent legal counsel, the board of directors, or committee provided in this subsection, shall be deemed to have made a determination that the Indemnitee is entitled to Indemnification under Section 3 and that the subsequent Clauses Expenses and Resolution Costs are reasonable, unless within that 30 day period, such board or committee determines, in writing and in unconditional terms, that indemnification is not allowed under Section 3 of the Joint Venture this Agreement or that a specified portion of such Expenses and Resolution Costs are renumbered as not reasonable. (c) If a result hereof. The Parties agree that Clause 17.1 reads as follows: "The Parties agree that, as a general rule, any indemnification or any other sum due by Shurgard or Luxco to the Company under the Joint Venture Agreement, shall be paid directly into the Master Proceeds Account Change in Control (as defined in Section 1(d)) has occurred, the Senior Credit Agreement) determination made under Section 4 shall be made by independent legal counsel and not the board of directors or a committee of the Companyboard of directors. If there has been a Change in Control, independent legal counsel shall be selected by Indemnitee. The Parties Corporation shall procure pay the reasonable fees of the independent legal counsel and fully indemnify such counsel against any and all expense (including attorney fees), claims, liabilities, and damages arising out of or relating to this Agreement or its engagement pursuant thereto. (d) If the indemnification demand is referred to independent legal counsel under this Section 4, a determination as to whether or not Indemnitee is entitled to indemnification shall be made no later than 45 days after Indemnitee's initial demand to the Corporation. Independent legal counsel shall be deemed to have made a determination that indemnification is allowed under Section 3 of this Agreement and that the Expenses and Resolution Costs are reasonable, unless within that 45 day period, independent legal counsel presents to the Corporation's board of directors a written opinion stating in unconditional terms that Indemnitee is not entitled to indemnification under Section 3 of this Agreement or that a specified portion of such Expenses and Resolution Costs are not reasonable. (e) If the Corporation has not made a determination as at and from to whether or not indemnification is allowed under Section 3 within the Closing Date30 day period (or 45 day period if referred to independent legal counsel) prescribed in Section 4, the Company irrevocably grants Corporation shall be deemed to have made a determination that Indemnitee is entitled to indemnification under Section 3 and that the Expenses and Resolution Costs are reasonable. (f) The right to indemnification payments as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not required or permitted by this Agreement shall be on -5- the Corporation or on any Person challenging the indemnification. Neither the failure of the Corporation, including its board of directors, committees, or legal counsel, to have made a determination prior to the Security Agent (as defined commencement of any Proceeding that indemnification is proper nor an actual determination by the Corporation, including its board of directors, committee or independent legal counsel, that indemnification is not proper, shall bar an action by Indemnitee to enforce this Agreement or create a presumption that Indemnitee is not entitled to indemnification under this agreement. If the board of directors, committee or independent legal counsel determines in the Senior Credit Agreement) accordance with Section 4 above that Indemnitee would not be permitted to be indemnified in whole or in part, Indemnitee shall have the right to claimcommence litigation in any court in the State of Michigan having subject matter jurisdiction thereof and in which venue is proper seeking an independent determination by the court or challenging any such determination by the board of directors, on behalf committee, or independent legal counsel, and for the account Corporation hereby consents to service of the Company, following an Event of Default under the Senior Credit Agreement, indemnification for process and to appear in any damages such proceeding. Expenses incurred by the Company under the Joint Venture AgreementIndemnitee in connection with successfully establishing Indemnitee's right to indemnification, provided that such indemnification in whole or in part, shall also be paid into or reimbursed by the Master Proceeds Account Corporation. (g) Indemnitee shall not participate in any way in the board of the Company." Amendment directors' or committees' discussion and approval of indemnification under this Section 4. However, Indemnitee may present Indemnitee's request to the Articles board of Association of First Shurgard SPRL (Schedule 1.1.1 directors and respond to any inquiries concerning Indemnitee's involvement in the circumstances giving rise to the Joint Venture Agreement) The Parties agree that the third paragraph of Article 9 of the agreed Articles of Association shall be brought in accordance with the modification set out in Clause 2 above to read as follows: "Notwithstanding the foregoing and in deviation from Article 249, Section 2 of the Companies Code, the shares may only be freely transferred (i) to the shareholders of the same class of shares administrative proceeding or (ii) by a shareholder to an Affiliated Company (as defined in Article 11 of the Companies Code) of such shareholder, provided that the Affiliated Company undertakes to retransfer the shares to such shareholder when the Affiliated Company ceases to be an Affiliated Company of such shareholder or (iii) by all shareholders jointly to the Security Agent, as such term has been defined in the senior credit agreement of 26 May 2003 between (amongst others) the company and Société Générale (the "Senior Credit Agreement"), upon the occurrence of an Event of Default (as in the Senior Credit Agreement), which is continuing or (iv) to any person elected pursuant to the procedure set out in the law of 5 May 1872 on commercial pledges, upon the occurence of an Event of Default (as defined in the Senior Credit Agreement), which is continuingcivil action." The French version of the Articles of Association shall read as follows: 'Nonobstant ce qui précède et par exception à ce qui est prévu à l'article 249, Section 2 du Code des sociétés, les actions ne peuvent être cédées librement que (i) à des actionnaires de la même catégorie d'actions ou (ii) par un actionnaire à une Société Liée (tel que ce terme est défini à l'article 11 du Code des sociétés) de cet actionnaire, pour autant que la Société Liée s'engage à rétrocéder les actions à cet actionnaire dès qu'elle cesse d'être une Société Liée de ce dernier ou (iii) par tous les actionnaires conjointement au profit du Security Agent, tel que ce terme est défini dans le contrat de crédit du 26 mai 2003 conclu (entre autre) entre la société et Société Générale ("Senior Credit Agreement"), en cas de survenance d'un Cas de Défaillance (Event of Default comme défini dans le Senior Credit Agreement) qui continue ou (iv) à chaque personne désignée conformément à la procédure prévue dans la loi du 5 mai 1872 sur xx xxxx commercial, en cas de survenance d'un Cas de Défaillance (Event of Default, comme défini dans le Senior Credit Agreement) qui continue." Amendment to the Property and Asset Management Agreement (Schedule 5.4.1 to the Joint Venture Agreement)

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Samples: Indemnification Agreement (Professionals Direct Inc)