Common use of Primacy of Indemnification Clause in Contracts

Primacy of Indemnification. The Members hereby acknowledge that certain Covered Persons have or may have certain rights to indemnification, advancement of expenses or insurance provided by the WHP Holder or Express Holder or certain of their respective Affiliates (collectively, the “Holder Indemnitors”). The Members hereby agree (i) that the Company is the indemnitor of first resort (i.e., its obligations to the Covered Persons are primary and any obligation of the Holder Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Covered Person are secondary), (ii) that the Company shall be required to advance the full amount of expenses incurred by such Covered Persons and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Delaware Act (or any other agreement between the Company and such Covered Persons), without regard to any rights such Covered Persons may have against the Holder Indemnitors, and (iii) that the Company irrevocably waives, relinquishes and releases the Holder Indemnitors from any and all claims against the Holder Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Members further agree that no advancement or payment by the Holder Indemnitors on behalf of any Covered Person with respect to any claim for which such Covered Person has sought indemnification from the Company shall affect the foregoing and the Holder Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Covered Persons against the Company. The Members agree that the Holder Indemnitors are express third party beneficiaries of the terms of this Section 7.5.

Primacy of Indemnification. The Members Company hereby acknowledge acknowledges that certain Covered Persons have or may the CD&R Investors and their Affiliates that are Holders have certain rights to indemnification, advancement of expenses or and/or insurance provided by the WHP Holder or Express Holder or certain of their respective Affiliates (collectively, the “Holder Indemnitors”). The Members Company hereby agree agrees that (i) that the Company it is the indemnitor of first resort (i.e., its obligations to the Covered Persons CD&R Investors and their Affiliates that are Holders are primary and any obligation of the Holder Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities Losses incurred by the CD&R Investors and their Affiliates that are Holders are secondary to any Covered Person are secondarysuch obligation of the Company), (ii) that the Company shall be required to advance the full amount of expenses incurred by such Covered Persons and it shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement Losses to the extent legally permitted and as required by the terms of this Agreement and the Delaware Act articles and other organizational documents of the Company (or any other agreement between the Company and such Covered Personsthe CD&R Investors or their Affiliates that are Holders), without regard to any rights such Covered Persons the CD&R Investors and their Affiliates that are Holders may have against the Holder Indemnitors, and (iii) that the Company it irrevocably waives, relinquishes and releases the Holder Indemnitors from any and all claims (x) against the Holder Indemnitors for contribution, indemnification, subrogation or any other recovery of any kind in respect thereofthereof and (y) that the CD&R Investors and their Affiliates that are Holders must seek indemnification from any Indemnitor before the Company must perform its indemnification obligations under this Agreement. The Members further agree that no No advancement or payment by the Holder Indemnitors on behalf of any Covered Person the CD&R Investors or their Affiliates that are Holders with respect to any claim for which such Covered Person the CD&R Investors or their Affiliates that are Holders has sought indemnification from the Company hereunder shall affect the foregoing and the Holder foregoing. The Indemnitors shall have a right of contribution or and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Covered Persons which the CD&R Investors and their Affiliates that are Holders would have had against the CompanyCompany if the Indemnitors had not advanced or paid any amount to or on behalf of the CD&R Investors and their Affiliates that are Holders. The Members Company and the CD&R Investors and their Affiliates that are Holders agree that the Holder Indemnitors are express third third-party beneficiaries of the terms of this Section 7.55.

Primacy of Indemnification. The Members Company hereby acknowledge acknowledges that certain Covered Persons have or may the D. E. Shaw Investor and its Affiliates that are Holders have certain rights to indemnification, advancement of expenses or and/or insurance provided by the WHP Holder or Express Holder or certain of their respective Affiliates (collectively, the “Holder Indemnitors”). The Members Company hereby agree agrees that (i) that the Company it is the indemnitor of first resort (i.e., its obligations to the Covered Persons D. E. Shaw Investor and its Affiliates that are Holders are primary and any obligation of the Holder Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities Losses incurred by the D. E. Shaw Investor and its Affiliates that are Holders are secondary to any Covered Person are secondarysuch obligation of the Company), (ii) that the Company shall be required to advance the full amount of expenses incurred by such Covered Persons and it shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement Losses to the extent legally permitted and as required by the terms of this Agreement and the Delaware Act articles and other organizational documents of the Company (or any other agreement between the Company and such Covered Personsthe D. E. Shaw Investor or its Affiliates that are Holders), without regard to any rights such Covered Persons the D. E. Shaw Investor and its Affiliates that are Holders may have against the Holder Indemnitors, and (iii) that the Company it irrevocably waives, relinquishes and releases the Holder Indemnitors from any and all claims (x) against the Holder Indemnitors for contribution, indemnification, subrogation or any other recovery of any kind in respect thereofthereof and (y) that the D. E. Shaw Investor and its Affiliates that are Holders must seek indemnification from any Indemnitor before the Company must perform its indemnification obligations under this Agreement. The Members further agree that no No advancement or payment by the Holder Indemnitors on behalf of any Covered Person the D. E. Shaw Investor or its Affiliates that are Holders with respect to any claim for which such Covered Person the D. E. Shaw Investor or its Affiliates that are Holders has sought indemnification from the Company hereunder shall affect the foregoing and the Holder foregoing. The Indemnitors shall have a right of contribution or and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Covered Persons which the D. E. Shaw Investor and its Affiliates that are Holders would have had against the CompanyCompany if the Indemnitors had not advanced or paid any amount to or on behalf of the D. E. Shaw Investor and its Affiliates that are Holders. The Members Company and the D. E. Shaw Investor and its Affiliates that are Holders agree that the Holder Indemnitors are express third third-party beneficiaries of the terms of this Section 7.55.

Primacy of Indemnification. The Members Company hereby acknowledge acknowledges that certain Covered Persons have or may have the Investor has certain rights to indemnification, advancement of expenses or and/or insurance provided by the WHP Holder or Express Holder or certain of their respective Affiliates affiliates (collectively, the “Holder Indemnitors”). The Members Company hereby agree agrees that (i) that the Company it is the indemnitor of first resort (i.e., its obligations to the Covered Persons Investor are primary and any obligation of the Holder Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities Losses incurred by the Investor are secondary to any Covered Person are secondarysuch obligation of the Company), (ii) that the Company shall be required to advance the full amount of expenses incurred by such Covered Persons and it shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement Losses to the extent legally permitted and as required by the terms of this Agreement and the Delaware Act articles and other organizational documents of the Company (or any other agreement between the Company and such Covered Personsthe Investor), without regard to any rights such Covered Persons the Investor may have against the Holder Indemnitors, and (iii) that the Company it irrevocably waives, relinquishes and releases the Holder Indemnitors from any and all claims (x) against the Holder Indemnitors for contribution, indemnification, subrogation or any other recovery of any kind in respect thereofthereof and (y) that the Investor must seek indemnification from any Indemnitor before the Company must perform its indemnification obligations under this Agreement. The Members further agree that no No advancement or payment by the Holder Indemnitors on behalf of any Covered Person the Investor with respect to any claim for which such Covered Person the Investor has sought indemnification from the Company hereunder shall affect the foregoing and the Holder foregoing. The Indemnitors shall have a right of contribution or and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Covered Persons which the Investor would have had against the CompanyCompany if the Indemnitors had not advanced or paid any amount to or on behalf of the Investor. The Members Company and the Investor agree that the Holder Indemnitors are express third party beneficiaries of the terms of this Section 7.56.