Common use of Process; Advance Payment of Expenses Clause in Contracts

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 (other than under this 11.2.4). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) Except to the extent described above in this 11.2.4, the Company may pay the expenses incurred by an Indemnitee in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee to repay such payment if the Indemnitee shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11; provided, however, that in such instance the Indemnitee is not defending an actual or threatened claim, action, suit or proceeding brought or initiated by Members constituting at least a majority in interest of the Members.

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 (other than under this 11.2.4). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability Confidential arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) Except to the extent described above in this 11.2.4, the Company may pay the expenses incurred by an Indemnitee in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee to repay such payment if the Indemnitee shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11; provided, however, that in such instance the Indemnitee is not defending an actual or threatened claim, action, suit or proceeding brought or initiated by Members constituting at least a majority in interest of the Members.

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 (other than under this 11.2.4). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) Except to the extent described above in this 11.2.4, the Company may pay the expenses incurred by an Indemnitee in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee to repay such payment if the Indemnitee shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11; provided, however, that in such instance the Indemnitee is not defending an actual or threatened claim, action, suit or proceeding (a) against the Indemnitee by the Company, the Board and/or the Adviser (or by the Indemnitee against the Company, the Board and/or the Adviser) or (b) brought or initiated by Members constituting the Approving Members who represent at least a majority in interest number of the Members.

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2Section, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 Section (other than under this 11.2.4paragraph (h)). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 Section for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 paragraph for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) . The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) . Except to the extent described above in this 11.2.4paragraph (h), the Company may pay the expenses incurred by an Indemnitee in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee to repay such payment if the Indemnitee shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11Section 18; provided, however, that in such instance the Indemnitee is not defending an actual or threatened claim, action, suit or proceeding (a) against the Indemnitee by the Company, the Board and/or the Adviser (or by the Indemnitee against the Company, the Board and/or the Adviser) or (b) brought or initiated by Members constituting the Approving Members who represent at least a majority in interest number of the Members.

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 (other than under this 11.2.4). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) Except to the extent described above in this 11.2.4, the Company may pay the expenses incurred by an Indemnitee in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee to repay such payment if the Indemnitee shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11; provided, however, that in such instance the Indemnitee is not defending an actual or threatened claim, action, suit or proceeding brought or initiated by Members constituting at least a majority in interest of the Members.liability

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 (other than under this 11.2.4). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) Except to the extent described above in this 11.2.4, the Company may pay the expenses incurred by an Indemnitee in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee to repay such payment if the Indemnitee shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11; provided, however, that in such instance the Indemnitee is not defending an actual or threatened claim, action, suit or proceeding brought or initiated by Members constituting at least a majority in interest of the Members.

Process; Advance Payment of Expenses. (a) Promptly after receipt by an Indemnitee of notice of the commencement of any actionProceeding, such Indemnitee shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee under this 11.2 (other than under this 11.2.4). Once the Company is so notified, the Company will be entitled to participate in such action Proceeding and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee under this 11.2 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnitee, (iii) the Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings Proceedings (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee under this 11.2.4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee. (b) The Company and the Indemnitee shall inform any other Indemnitee of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the Indemnitee, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnitee. (c) Except to the extent described above in this 11.2.4, the Company may shall pay the expenses Indemnification Expenses incurred by an Indemnitee in connection with defending any such action, suit or proceedingProceeding, or in connection with defending any claims arising in connection with any potential or threatened action, suit or proceedingProceeding, in advance of the final disposition of such actionProceeding, suit or proceeding, upon within ten (10) calendars days after receipt of a written request for such advancement and an enforceable undertaking by such Indemnitee to repay such payment if the such Indemnitee shall be determined to be not entitled to indemnification for such expenses Indemnification Expenses pursuant to this Article 11; provided, however, that in the event the Company assumes the defense of Indemnitee in such instance Proceeding with counsel reasonably satisfactory to Indemnitee, the Company shall not be liable to such Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee in connection with the defense thereof. To the extent required by Delaware law and the 1940 Act, such Indemnitee hereby undertakes to repay any and all of the amount of Indemnification Expenses paid to such Indemnitee if it is finally determined by a court of competent jurisdiction that Indemnitee is not defending entitled under this Agreement to indemnification with respect to such Indemnification Expenses. This undertaking is an actual unlimited general obligation of such Indemnitee. (d) In making any determination required to be made under Delaware law or threatened claimhereunder with respect to entitlement to indemnification hereunder, actionthe person, suit persons or proceeding brought entity making such determination shall presume that such Indemnitee is entitled to indemnification under this Agreement if such Indemnitee submitted a request therefor in accordance with this Article 11, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or initiated by Members constituting at least a majority in interest entity of any determination contrary to that presumption. The failure of the MembersCompany (including its Board or independent legal counsel selected by the Board) to make a determination concerning the entitlement of such Indemnitee to indemnification or advancement under this Article 11 shall not be a defense in any action brought under Article 11, and shall not create a presumption that such indemnification or advancement is not permissible. (e) In the event that such Indemnitee makes a request for payment of indemnification under this Article 11 or a request for an advancement under this Article 11 and the Company fails to make such payment or advancement in a timely manner pursuant to the terms of this Agreement, such Indemnitee may commence suit in any court of the State of Delaware and the federal courts of the United States of America located in the State of Delaware to enforce the Company’s obligations under this Agreement and the Company shall be liable to such Indemnitee under this 11.2.4 for any reasonable out-of-pocket expenses incurred by such Indemnitee in connection with enforcing such obligations to the extent such Indemnitee is the prevailing party in such suit to enforce the Company’s obligations under this Agreement.

Process; Advance Payment of Expenses. (ai) Promptly after receipt by an Indemnitee Indemnified Party of notice of the commencement of any action, such Indemnitee Indemnified Party shall, if a claim in respect thereof is to be made against the Company pursuant to this 11.2Section 9, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve the Company from any liability which it may have to any Indemnitee Indemnified Party under this 11.2 Section 9 (other than under this 11.2.4Section 9(d)). Once the Company is so notified, the Company will be entitled to participate in such action and, if desired, to assume the defense thereof with counsel reasonably satisfactory to the IndemniteeIndemnified Party. If the Company so assumes the defense, the Company shall not be liable to such Indemnitee Indemnified Party under this 11.2 Section 9 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnitee Indemnified Party in connection with the defense thereof, provided, however, that if (i) the Company and the Indemnitee Indemnified Party mutually agree otherwise, (ii) the Company has failed within a reasonable time to retain counsel reasonably satisfactory to the IndemniteeIndemnified Party, (iii) the Indemnitee Indemnified Party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Company or (iv) the named parties in any such proceedings (including any impleaded parties) include both the Company and the Indemnitee Indemnified Party and the Indemnitee Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Company shall be liable to such Indemnitee Indemnified Party under this 11.2.4 Section 9(d) for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such IndemniteeIndemnified Party. (bii) The Company and the Indemnitee Indemnified Party shall inform any other Indemnitee Indemnified Party of any such settlement, compromise or judgment, prior to the completion of such settlement, compromise or judgment. The Company shall not, without the written consent of the IndemniteeIndemnified Party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnitee Indemnified Party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnitee Indemnified Party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any IndemniteeIndemnified Party. (ciii) Except to the extent described above in this 11.2.4Section 9, the Company may pay the expenses incurred by an Indemnitee Indemnified Party in connection with any such action, suit or proceeding, or in connection with claims arising in connection with any potential or threatened action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, upon receipt of an enforceable undertaking by such Indemnitee Indemnified Party to repay such payment if the Indemnitee Indemnified Party shall be determined to be not entitled to indemnification for such expenses pursuant to this Article 11Section 9; provided, however, that in such instance the Indemnitee Indemnified Party is not defending an actual or threatened claim, action, suit or proceeding brought or initiated by Members stockholders constituting at least a majority in interest of the Membersstockholders.