Common use of VERSION Clause in Contracts

VERSION. Upon receipt of notice from the Indemnifying Party to such Indemnified Party of its election to so assume the defense of such action and approval of counsel by the Indemnified Party (which approval may not be unreasonably withheld, conditioned or delayed), the Indemnifying Party will not be liable for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed separate counsel reasonably satisfactory to the Indemnifying Party in connection with the assertion of legal defenses in accordance with the proviso to the preceding sentence (it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) representing all the Indemnified Parties under this Section 5.02 who are parties to such action), (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Indemnifying Party has authorized the employment of counsel for the Indemnified Party reasonably acceptable to the Indemnifying Party and at the expense of the Indemnifying Party; and except that, if clause (i) or (iii) is applicable, such liability shall only be in respect of the counsel referred to in such clause (i) or (iii). The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which consent may not be unreasonably withheld, conditioned or delayed) but, if settled with such consent or if there is a final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment to the extent required by this Section 5.02. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested the Indemnifying Party, in writing, to reimburse the Indemnified Party for reasonable fees and expenses of counsel incurred in good faith or any other reasonable expenses incurred in good faith for which the Indemnifying Party is obligated hereunder, the Indemnifying Party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) days after receipt by the Indemnifying Party of the aforesaid request, (ii) the Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement, and (iii) such settlement or compromise or consent does not include an express statement as to, or an express admission of, fault, culpability, negligence or a failure to act by or on behalf of the Indemnifying Party or an agent thereof. If the Indemnifying Party assumes the defense of any proceeding, it shall be entitled to settle such proceeding (x) with the consent of the Indemnified Party or (y) if such settlement provides for an unconditional release of the Indemnified Party in connection with all matters relating to the proceeding that have been asserted against the Indemnified Party in such proceeding by the other parties to such settlement, which release does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party, without the consent of the Indemnified Party.

VERSION. Upon receipt of notice Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Indemnifying Party Lenders. The Administrative Agent shall notify the Borrower of any participation in any Swingline Loan acquired pursuant to such Indemnified Party of its election to so assume the defense of such action this paragraph, and approval of counsel by the Indemnified Party (which approval may not be unreasonably withheld, conditioned or delayed), the Indemnifying Party will not be liable for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed separate counsel reasonably satisfactory to the Indemnifying Party in connection with the assertion of legal defenses in accordance with the proviso to the preceding sentence (it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) representing all the Indemnified Parties under this Section 5.02 who are parties to such action), (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Indemnifying Party has authorized the employment of counsel for the Indemnified Party reasonably acceptable to the Indemnifying Party and at the expense of the Indemnifying Party; and except that, if clause (i) or (iii) is applicable, such liability shall only be thereafter payments in respect of the counsel referred to in such clause (i) or (iii). The Indemnifying Party Swingline Loan shall not be liable for any settlement of any proceeding effected without its written consent (which consent may not be unreasonably withheld, conditioned or delayed) but, if settled with such consent or if there is a final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment made to the extent required Administrative Agent and not to the Swingline Lender. Any amounts received by this Section 5.02. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested Swingline Lender from the Indemnifying Party, Borrower (or other party on behalf of the Borrower) in writing, to reimburse the Indemnified Party for reasonable fees and expenses respect of counsel incurred in good faith or any other reasonable expenses incurred in good faith for which the Indemnifying Party is obligated hereunder, the Indemnifying Party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) days a Swingline Loan after receipt by the Indemnifying Party Swingline Lender of the aforesaid requestproceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, (ii) as their interests may appear; provided that any such payment so remitted shall be repaid to the Indemnifying Party Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. Notwithstanding the foregoing, a Lender shall not have reimbursed any obligation to acquire a participation in a Swingline Loan pursuant to this paragraph if an Event of Default shall have occurred and be continuing at the Indemnified Party time such Swingline Loan was made and such Lender shall have notified the Swingline Lender in accordance with such request writing, at least one Business Day prior to the date time such Swingline Loan was made, that such Event of Default has occurred and that such settlement, and (iii) Lender will not acquire participations in Swingline Loans made while such settlement or compromise or consent does not include an express statement as to, or an express admission of, fault, culpability, negligence or a failure to act by or on behalf Event of the Indemnifying Party or an agent thereof. If the Indemnifying Party assumes the defense of any proceeding, it shall be entitled to settle such proceeding (x) with the consent of the Indemnified Party or (y) if such settlement provides for an unconditional release of the Indemnified Party in connection with all matters relating to the proceeding that have been asserted against the Indemnified Party in such proceeding by the other parties to such settlement, which release does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party, without the consent of the Indemnified PartyDefault is continuing.”

VERSION. Upon receipt (d) In the event that the indemnity provided in paragraph (a) or (b) of notice from the Indemnifying Party this Section 5 is unavailable to such Indemnified Party of its election or insufficient to so assume the defense of such action and approval of counsel by the Indemnified Party (which approval may not be unreasonably withheld, conditioned or delayed), the Indemnifying Party will not be liable hold harmless an indemnified party for any reason, each indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses subsequently reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the indemnified party may be subject in such proportion as is appropriate to reflect the relative benefits received by indemnifying party or parties, on the one hand, and the indemnified party on the other hand from the exchange of Securities pursuant to the Registered Exchange Offer or the registration of the Initial Securities pursuant to the Shelf Registration, as applicable. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company, the Guarantors, the Holders of Securities and the Participating Broker-Dealers shall contribute in such Indemnified Party proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantors, on the one hand, and of the Holders of Securities and the Participating Broker-Dealers, on the other hand, in connection with the defense thereofstatements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Relative fault shall be determined by reference to, unless among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company and the Guarantors on the one hand or the relevant Holder, Participating Broker-Dealer or other indemnified party on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantors, the Holders of Securities and any Participating Broker-Dealer agrees that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (id), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Indemnified Party Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5, each person who controls a Holder of Securities or Participating Broker-Dealer within the meaning of either the Act or the Exchange Act and each affiliate, director, officer, employee and agent of a Holder of Securities or Participating Broker-Dealer shall have employed separate counsel reasonably satisfactory the same rights to contribution as such Holder of Securities or Participating Broker-Dealer, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed a Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the Indemnifying Party in connection with the assertion applicable terms and conditions of legal defenses in accordance with the proviso to the preceding sentence this paragraph (it being understood, however, that the Indemnifying Party shall not be liable for the expenses d). Notwithstanding any other provision of more than one separate counsel (in addition to local counsel) representing all the Indemnified Parties under this Section 5.02 who are parties to such action5(d), (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement no Holder of the action, or (iii) the Indemnifying Party has authorized the employment of counsel for the Indemnified Party reasonably acceptable Securities shall be required to the Indemnifying Party and at the expense contribute any amount in excess of the Indemnifying Party; and except that, if clause (i) or (iii) is applicable, amount by which the net proceeds received by such liability shall only be in respect Holder from the sale of the counsel referred Securities pursuant to in a Registration Statement exceeds the amount of damages which such clause (i) or (iii). The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which consent may not be unreasonably withheld, conditioned or delayed) but, if settled with such consent or if there is a final judgment for the plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and against any loss or liability Holder has otherwise been required to pay by reason of such settlement untrue or judgment to the extent required by alleged untrue statement or omission or alleged omission. (e) The agreements contained in this Section 5.02. Notwithstanding 5 shall survive the foregoing sentencesale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, if at any time an Indemnified Party shall have requested the Indemnifying Party, in writing, to reimburse the Indemnified Party for reasonable fees and expenses of counsel incurred in good faith or any other reasonable expenses incurred in good faith for which the Indemnifying Party is obligated hereunder, the Indemnifying Party shall be liable for any settlement regardless of any proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) days after receipt by the Indemnifying Party of the aforesaid request, (ii) the Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement, and (iii) such settlement or compromise or consent does not include an express statement as to, or an express admission of, fault, culpability, negligence or a failure to act by or on behalf of the Indemnifying Party or an agent thereof. If the Indemnifying Party assumes the defense of any proceeding, it shall be entitled to settle such proceeding (x) with the consent of the Indemnified Party or (y) if such settlement provides for an unconditional release of the Indemnified Party in connection with all matters relating to the proceeding that have been asserted against the Indemnified Party in such proceeding by the other parties to such settlement, which release does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party, without the consent of the Indemnified Party.termination or