Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will not be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act. (b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto. (c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act. (d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned. (e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder. (f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim. (g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 2 contracts
Sources: Limited Partnership Agreement (CatchMark Timber Trust, Inc.), Asset Management Agreement (CatchMark Timber Trust, Inc.)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will Member shall not be liable to Parentthe Issuer, the Company or Co-Issuer, any holder of their respective Subsidiariesthe Notes, any holder of the Parent BoardPreferred Shares, any holder of ordinary shares of the General Partner, the Company Board Issuer or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries Collateral Manager (i) for any losses incurred as a result of the actions taken or omitted to be taken by the Member pursuant to the provisions of this Exhibit B-1 or the Advisory Committee Guidelines, except that the Member may be so liable to the extent such losses are the result of acts or omissions constituting willful misconduct, fraud or gross negligence by any Manager Indemnified Party, pursuant to the Member in the performance of its obligations hereunder or in accordance with this Agreement, except under the Advisory Committee Guidelines or (ii) for any the acts or omissions by of any Manager Indemnified Party constituting a Bad Actother member of the Advisory Committee.
(b) To The Issuer shall indemnify the fullest extent permitted by applicable LawMember for, Company shall and does hereby agree to indemnify and hold the Member harmless against, any loss, liability or expense (including without limitation reasonable attorneys’ fees and pay all judgments expenses) incurred arising out of or in connection with the Member’s service as a member of the Advisory Committee, including the costs and claims expenses of defense against any Manager Indemnified Party, each claim or liability in connection with the exercise or performance of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion its powers or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents duties hereunder (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified PartiesLosses”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so Issuer shall not indemnify the Member for any Losses incurred as a result of acts or omissions constituting willful misconduct, fraud or gross negligence by the Member in the performance of its obligations hereunder or under the Advisory Committee Guidelines.
(c) If any action shall be instituted involving the Member for which indemnification hereunder may be applicable, such Member shall promptly notify the Indemnitor will not relieve Issuer and the Indemnitor from any liability which it may have hereunder, except to Collateral Manager in writing and the extent such failure actually prejudices the Indemnitor. The Indemnitor Issuer shall have the right to assume retain counsel reasonably satisfactory to the defense Issuer and settlement the Collateral Manager to represent the Member and any others the Issuer may designate in such proceeding and shall pay the reasonable fees and disbursements of such claim; providedcounsel related to such proceeding. In any such proceeding, the Member shall have the right to retain individual counsel, but the fees and expenses of such counsel shall be at the expense of the Member unless (i) the Issuer and the Member shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include the Member and the Issuer and representation of all such parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnitor notifies Issuer shall not, in connection with any proceeding or related proceedings in the Indemnified Party same jurisdiction, be liable for the fees and expenses of its election more than one separate firm (in addition to assume such defense any local counsel) for the Member and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice any other members of the claim. In such case, the Indemnified Party will not settle or compromise such claimAdvisory Committee, and the Indemnitor will that all such reasonable fees and expenses shall be reimbursed as they are incurred. The Issuer shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Issuer agrees, subject to the limitations noted herein, to indemnify the Member from and against any loss or liability by reason of such settlement madeor judgment. The Issuer shall not, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior written consent of the Indemnified Party if Member, effect any settlement of any pending or threatened proceeding in respect of which the Member is or is likely to have been a party, unless such settlement involves the full includes an unconditional release of the Indemnified Party and does not impose Member from all liability on claims that are the subject matter of such proceeding. Notwithstanding the foregoing, if any non-monetary remedies and conditions on person shall pay the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of Member any claim that may be subject to a right amount of indemnification pursuant to Section 11(b) or Section 11(c) this Paragraph 4, such person shall be advanced by the Indemnitor prior succeed to the final disposition thereof upon receipt rights of an undertaking by or on behalf of such Indemnified Party to repay such amount the Issuer, to the extent that it shall be determined upon final decisionexclusion of the Issuer, judgment or order set forth in this Paragraph 4(c) (whether or including, but not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitorlimited to, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action right of the Company, as a matter Issuer to retain counsel to represent the Member in any related proceeding and to effect any settlement of Law any related pending or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacitythreatened proceeding).
Appears in 2 contracts
Sources: Collateral Management Agreement (Gramercy Capital Corp), Collateral Management Agreement (Gramercy Capital Corp)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, Neither the “Manager Indemnified Parties”) will not Armour Shareholder Representative nor any agent employed by him shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant Armour Shareholder relating to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of his duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Armour Shareholder Representative constituted fraud or were taken or not taken in bad faith. The Armour Shareholder Representative shall be indemnified and held harmless by the Armour Shareholders against all Damages (as defined in Section 8.02) paid or incurred in connection with any action, suit, proceeding or claim to which the Armour Shareholder Representative is made a party by reason of the fact that he was acting as the Armour Shareholder Representative pursuant to this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure Armour Shareholder Representative shall not be entitled to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnification hereunder to the extent such failure actually prejudices it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Indemnitor. The Indemnitor shall have actions taken or not taken by the right to assume the defense Armour Shareholder Representative constituted fraud or were taken or not taken in bad faith; and settlement of such claim; providedprovided further, however, that the Indemnitor notifies Armour Shareholder Representative shall have recourse only against the Indemnified Party unpaid Armour Escrow Amount (fully subordinated in right of its election to assume such defense payment and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice otherwise to the Indemnified PartyBuyer's claims thereto, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject then existing or known), with respect to appealsuch Damages as provided in the next two sentences of this Section 7.05. Any amount owing to the Armour Shareholder Representative from the Armour Shareholders pursuant to this Section 7.05 shall be reduced on a pro rata basis from the next succeeding distribution(s) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received the Armour Escrow Amount by the Indemnitor, Disbursing Agent to the claimant may file suit to recover the unpaid amount holders of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwiseArmour Common Stock, and shall continue as be payable solely from such source. The Armour Shareholder Representative shall be protected in acting upon any notice, statement or certificate believed by him to an Indemnified Party who has ceased be genuine and to serve have been furnished by the appropriate person and in such capacityacting or refusing to act in good faith or any matter.
Appears in 2 contracts
Sources: Merger Agreement (Windy Hill Pet Food Co Inc), Stock Purchase Agreement (Windy Hill Pet Food Co Inc)
Exculpation and Indemnification. Neither the Member, Managers nor Officers (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the each an “Manager Indemnified Partiesi”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board for any loss, damage or the members, managers or partners of Parent, the Company claim (a “Loss”) (or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
costs associated therewith (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any Loss or Costs incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any Loss or arising from any Costs incurred by such Indemnified Party by reason of such Indemnified Party’s gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 22 shall be provided out of and to the extent such failure actually prejudices the Indemnitorof Company assets only, and no Member, Manager or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such an Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full connection with any Loss within twenty (20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from time to time; provided such statement provides reasonable documentary evidence of such Costs and provides a written notice of claim therefor has been received undertaking by the Indemnitor, Indemnified Party to repay any and all advanced Costs in the claimant may file suit event such Indemnified Party is ultimately determined to recover the unpaid amount of such claim and, if successful in whole or in part, shall not be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Energy XXI Gulf Coast, Inc.), Limited Liability Company Agreement (Energy XXI GOM, LLC)
Exculpation and Indemnification. Neither the Member, Managers nor Officers (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board for any loss, damage or the members, managers or partners of Parent, the Company claim (a “Loss”) (or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
costs associated therewith (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any Loss or Costs incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any Loss or arising from any Costs incurred by such Indemnified Party by reason of such Indemnified Party’s gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 21 shall be provided out of and to the extent such failure actually prejudices the Indemnitorof Company assets only, and no Member, Manager or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such an Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full connection with any Loss within twenty (20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from time to time; provided such statement provides reasonable documentary evidence of such Costs and provides a written notice of claim therefor has been received undertaking by the Indemnitor, Indemnified Party to repay any and all advanced Costs in the claimant may file suit event such Indemnified Party is ultimately determined to recover the unpaid amount of such claim and, if successful in whole or in part, shall not be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Energy XXI Gulf Coast, Inc.), Limited Liability Company Agreement (Energy XXI Onshore, LLC)
Exculpation and Indemnification. Neither the Member, Managers nor Officers (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board for any loss, damage or the members, managers or partners of Parent, the Company claim (a “Loss”) (or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
costs associated therewith (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any Loss or Costs incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any Loss or arising from any Costs incurred by such Indemnified Party by reason of such Indemnified Party’s gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 22 shall be provided out of and to the extent such failure actually prejudices the Indemnitorof Company assets only, and no Member, Manager or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such an Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full connection with any Loss within twenty (20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from time to time; provided such statement provides reasonable documentary evidence of such Costs and provides a written notice of claim therefor has been received undertaking by the Indemnitor, Indemnified Party to repay any and all advanced Costs in the claimant may file suit event such Indemnified Party is ultimately determined to recover the unpaid amount of such claim and, if successful in whole or in part, shall not be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Energy XXI Gulf Coast, Inc.), Limited Liability Company Agreement (Energy XXI Texas Onshore, LLC)
Exculpation and Indemnification. (a) The Asset ManagerEach Board Member, its Affiliates each other Member and their respective Constituent Memberseach officer, employeesmanager, managersdirector or agent of the Company (each, consultants an "Indemnitee"") shall be entitled, to the fullest extent permitted or required by the Delaware Act or other applicable Law, to be exculpated from, and agents (collectively, the “Manager Indemnified Parties”) will not be liable to Parentindemnified by, the Company against any liability, loss, damage, penalty, action, claim, judgment, settlement, cost or expense of any kind or nature whatsoever (including all reasonab le attorneys' fees, costs and expenses of their respective Subsidiariesdefense, the Parent Board, the General Partner, appeal and settlement of any proceedings instituted against such Indemnitee or the Company Board or the members, managers or partners and all costs of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant investigation in connection therewith) that relates to or arises out of, or is alleged to relate to or a rise out of, any action or inaction on the part of such Indemnitee acting in accordance with its applicable capacity on behalf of the Company; provided that an Indemnitee shall be entitled to indemnification hereunder only to the extent that such Indemnitee's conduct did not constitute fraud, willful misconduct, gross negligence or a breach of this Agreement, except any employee policies applicable to su ch Indemnitee or any fiduciary or other duties owed by suc h Indemnitee. The Board of Managers shall cause the Company to advance expenses incurred by such Indemnitee upon the receipt by the Company of a signed statement of such Indemnitee agreeing to reimburse the Company for such advance if it is ultimately determined that such Indemnitee is not entitled to be indemnified by the Company for such expenses and in such case any acts such Indemnitee shall reimburse the Company for such expenses previously paid to or omissions by any Manager Indemnified Party constituting a Bad Acton behalf of such Indemnitee. If the Company lacks sufficient cash assets to indemnify t he Indemnitee, then the Indemnitee shall be entitled to reimbursement, with interest at the prime rate, when the Company has cash assets available.
(b) To the fullest extent permitted The indemnification and advancement of expenses provided by applicable Law, Company shall and does hereby agree or granted pursuant to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against 6.03 shall not be deemed exclusive of any Loss incurred by them for other rights to which those seeking indemnification or advancement of expenses may be entitled under any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related theretoother agreement.
(c) To The Company may purchase and maintain insurance on behalf of any Person that is or was a Member, officer, employee or agent of the fullest extent permitted by applicable LawCompany, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, or is or was serving at the request of the Company and its Subsidiaries and each as a Member, officer, employee or agent of their respective Constituent Membersanother Person, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss liability asserted against him or her and incurred by them him or her in respect of any such capacity, or arising from any acts out of his or omissions by any Manager Indemnified Party pursuant her status as such, whether or not he or she would be entitled to or in accordance with this Agreement constituting a Bad Act. Each of indemnity against such liability under the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes provisions of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act6.03.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) indemnification and advancement of any claim for which it seeks indemnification; providedexpenses provided by, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled granted pursuant to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which this Section 6.03 shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject continue as to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent Person that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled has ceased to be indemnified hereunder.
(f) If a claim for indemnification Member, an officer, manager, director, employee or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action agent of the Company, as a matter of Law or otherwise, an Affiliate and shall continue as inure to an Indemnified Party who has ceased to serve in the benefit of the executors and administrators of such capacitya Person.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent A. None of the Members, employees, managers, consultants and agents Executive Committee members or Officers (collectively, the “Manager each an "Indemnified Parties”Party") will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other Person that has an interest in the Company Board for any loss, damage or the members, managers or partners of Parent, the Company claim (a "Loss") or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Party, pursuant to or in accordance costs associated with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
Loss (b"Costs") To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) applicable law. To the fullest extent permitted by applicable Lawlaw, Asset Manager an Indemnified Party shall and does hereby agree be entitled to indemnify and hold harmless and pay all judgments and claims against Parent, indemnification from the Company for any Loss or Costs incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager authority conferred on such Indemnified Party pursuant to or in accordance with by this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubtor applicable law, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 5.11 shall be provided out of and to the extent such failure actually prejudices of the IndemnitorCompany assets only, and no Member, Executive Committee member or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of an Indemnified Party in connection with any loss after receipt by the Company from the Indemnified Party of a statement requesting such advances from time to time, provided that such statement provides reasonable documentary evidence of such Costs and provides a written undertaking by the Indemnified Party to repay such amount to any and all advanced Costs in the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that event such Indemnified Party is ultimately determined not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid indemnification by the expenses of prosecuting such claimCompany.
(g) The indemnification provided by B. For the purposes of this Section 11 5.11, references to "the Company" shall be include, in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its members, executive committee members, officers or persons performing comparable functions, so that any Person who is or was an executive committee member, officer or person performing a comparable function of such constituent entity shall stand in the same position under the provisions of this Section 5.11 with respect to the resulting or surviving entity as a matter of Law or otherwise, and shall continue as he would have with respect to an Indemnified Party who has ceased to serve in such capacityconstituent entity if its separate existence had continued.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Hughes Electronics Corp)
Exculpation and Indemnification. (a) The Asset ManagerNeither the Investment Manager nor ------------------------------- any of its partners, its Affiliates and their respective Constituent Membersaffiliates, directors, officers, employees, managersshareholders, consultants members and other agents (collectivelyeach, the “Manager an "Indemnified Parties”) will not Party"), shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board Fund or to the Members for monetary damages for any losses, claims, damages or liabilities ("Damages") arising from any act performed or omitted by such parties arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the membersFund's business or affairs, managers including, without limitation, all activities of the type or partners character disclosed in the Fund's confidential offering memorandum, as it may have been supplemented or amended, under the captions "Risk Factors," "Conflicts of ParentInterest" or elsewhere therein (such disclosure being incorporated herein by reference), except to the Company extent that any such Damages are primarily attributable to the gross negligence or any willful misconduct of their respective Subsidiaries for any acts or omissions by any Manager such Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b1) To The Fund shall, to the fullest extent permitted by applicable Lawlaw, Company shall and does hereby agree to indemnify indemnify, defend and hold harmless and pay all judgments and claims the Indemnified Parties against any Damages to which the Indemnified Party may become subject in connection with any matter arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the Fund's business or affairs, except, with respect to any Indemnified Party to the extent that any such Damages are primarily attributable to the gross negligence or willful misconduct of such Indemnified Party. If the Indemnified Party becomes involved in any capacity in any action, proceeding or investigation in connection with any matter arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the Fund's business or affairs, the Fund shall reimburse the Indemnified Party for its reasonable legal and other expenses (including the cost of any investigation and preparation) as they are incurred in connection therewith, provided that the Indemnified Party shall promptly repay to the Fund the amount of any such reimbursed expenses paid to it if it shall ultimately be finally determined that the Indemnified Party was not entitled to be indemnified by the Fund in connection with such action, proceeding or investigation. If for any reason (other than by reason of the exclusions from indemnification hereinabove set forth) the foregoing indemnification is unavailable to the Indemnified Party, each or insufficient to hold it harmless, then the Fund shall contribute to the amount paid or payable by the Indemnified Party as a result of which shall be a third-party beneficiary of this Agreement solely for purposes such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the Fund on the one hand and the Indemnified Party on the other hand or, if such allocation is not permitted by applicable law, to reflect not only the relative benefits referred to above but also any other relevant equitable considerations.
(2) The provisions of this Section 113.1(b) shall survive for a period of three years from the date of dissolution of the Fund; provided that if at the end of such period there are any actions, from and against any Loss incurred by them for any act proceedings or omission taken or suffered by each Manager investigations then pending, the Indemnified Party shall notify the General Partner and the General Partner shall so notify the Fund and the Partners of the Fund at such time (including which notice shall include a brief description of each such action, proceeding or investigation and the liabilities asserted therein) and the provisions of this Section 3.1(b) shall survive with respect to each such action, proceeding or investigation set forth in such notice (or any act related action, proceeding or omission performed investigation based upon the same or omitted by any of them in good faith reliance upon similar claim) until the date that such action, proceeding or investigation is finally resolved; and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, further, that such Persons were selected and monitored with reasonable carethe obligations of the Fund under this Section 3.1(b) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission satisfied solely out of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation Fund assets, subject to the right of the Manager Indemnified Parties liquidator of the Fund to establish reserves, pursuant to the Fund Partnership Agreement for contingent obligations under this Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto3.1(b).
(c) To No member of the fullest extent permitted by applicable Law, Asset Manager General Partner or Partner of the Fund shall and does hereby agree have any obligation to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each Fund or any other Partner of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against Fund to bring or join in any Loss incurred by them action in respect defense of or arising from any acts or omissions by any Manager an Indemnified Party pursuant to Section 3.1 (a) or (b). Nothing contained in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) Section 3.1 shall be a third-party beneficiary construed as any waiver of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of insurance claims or arising from an act recoveries by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad ActFund or an Indemnified Party.
(d) The remedies of an Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; providedunder this Article III shall be non- exclusive and, howeverwithout duplication, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent each such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in may pursue any other manner remedy provided in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed law or conditionedequity.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement The provisions of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) this Article III shall be advanced by the Indemnitor prior inure to the final disposition thereof upon receipt benefit of an undertaking by or on behalf the Indemnified Parties, and any successors, assigns, heirs and personal representatives of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunderParties.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Investment Management Agreement (Capital Trust Inc)
Exculpation and Indemnification. (a) The Asset ManagerNone of Difco nor any of its officers, its Affiliates and their respective Constituent Membersdirectors, employees, managersagents, consultants and agents invitees, affiliates, successors or assigns (collectively, the “Manager Indemnified "Difco Related Parties”") will not shall be liable to Parent, the Company AccuMed or any of their respective Subsidiariesits officers, directors, employees, agents, invitees, affiliates, successors or assigns (the Parent Board"AccuMed Related Parties") with respect to any losses, costs, liabilities, settlement payments, awards, judgments, fines, penalties, damages (including compensatory, consequential, incidental, special, punitive and exemplary), expenses, or other charges (including reasonable attorney's fees) ("Losses"), and AccuMed (on behalf of itself and the General Partner, the Company Board AccuMed Related Parties) hereby waives and agrees to not make any claim against any of Difco or the membersDifco Related Parties therefor, managers and to pay, fully indemnify, defend and hold harmless Difco and the Difco Related Parties from any such Losses resulting from, arising out of or partners related to the performance of Parent, the Company or any of their respective Subsidiaries for any acts the services provided or omissions required to be provided by any Manager Indemnified Party, pursuant to or in accordance with Difco under this Agreement, except only for Losses arising out of the gross negligence or willful misconduct of Difco. AccuMed and, subject to the foregoing, Difco shall pay, fully indemnify, defend and hold each other harmless with respect to any acts Losses (but excluding any consequential, incidental, special, punitive and exemplary damages) arising out of either party's violation of, or omissions by failure to comply with, any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Lawmaterial provision of this Agreement and, Company in addition, AccuMed shall and does hereby agree to pay, fully indemnify and hold Difco and the Difco Related Parties harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions Losses arising out of such Manager Indemnified Party any claims made by AccuMed employees housed in the performance of this Agreement, AccuMed Space except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation Losses arising out of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) gross negligence or willful misconduct of the Parent LP Agreement or the Losses related theretoDifco.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Transition Services and Facilities Agreement (Accumed International Inc)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will Mortgagee shall not be directly or indirectly liable to Parent, the Company Mortgagor or any other person as a consequence of their respective Subsidiariesany of the following:
(i) Mortgagee's exercise of or failure to exercise any rights, remedies or powers granted to Mortgagee in this Mortgage;
(ii) Mortgagee's failure or refusal to perform or discharge any obligation or liability of Mortgagor under any agreement related to the Parent Board, the General Partner, the Company Board Property or the members, managers or partners of Parent, the Company under this Mortgage; or
(iii) Any loss sustained by Mortgagor or any third party resulting from Mortgagee's failure to lease the Property, or from any other act or omission of their respective Subsidiaries for any acts Mortgagee in managing the Property, after an Event of Default, unless the loss is caused by the willful misconduct or omissions bad faith of Mortgagee. To the extent permitted by any Manager Indemnified Partyapplicable law, pursuant to Mortgagor hereby expressly waives and releases all liability of the types described above, and agrees that no such liability shall be asserted against or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Actimposed upon Mortgagee.
(b) To Except for losses caused by the fullest extent permitted by applicable Lawwillful misconduct or bad faith of Mortgagee, Company shall and does hereby agree Mortgagor agrees to indemnify Mortgagee against and hold them harmless from all losses, damages, liabilities, claims, causes of action, judgments, court costs, attorneys' fees and pay all judgments other reasonable legal expenses, cost of evidence of title, cost of evidence of value, and claims against any Manager Indemnified Party, each of other reasonable costs and expenses which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act either may suffer or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for incur:
(i) In performing any act required or omission permitted by this Mortgage or any of a Manager Indemnified Party that constitutes a Bad Act the other Loan Documents or by law;
(ii) Because of any indemnification failure of Mortgagor to perform any of Mortgagor's obligations; or
(iii) Because of any alleged obligation of the Manager Indemnified Parties pursuant or undertaking by Mortgagee to Section 5.3(b)(iv) perform or discharge any of the Parent LP Agreement representations, warranties, conditions, covenants or other obligations in any document relating to the Losses related theretoProperty other than the Loan Documents. This agreement by Mortgagor to indemnify Mortgagee shall survive the release and cancellation of any or all of the Secured Obligations and the full or partial release and/or reconveyance of this Mortgage.
(c) To the fullest extent permitted by applicable Law, Asset Manager Mortgagor shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, amounts arising under the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary indemnity obligations of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act Mortgage immediately upon demand by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad ActMortgagee.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Mortgage Agreement (Players International Inc /Nv/)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent None of the Members, employeesManagers or Officers (each, managers, consultants and agents (collectively, the an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other Person or entity who has an interest in the Company Board for any loss, damage or the members, managers or partners of Parent, the Company claim (a “Loss”) (or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
costs associated therewith (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no indemnification liable for any such Loss and Costs incurred by reason of such Indemnified Party’s acts or omissions (i) any act which are not in good faith or omission of a Manager which such Indemnified Party that constitutes a Bad Act did not reasonably believe to be in or to not be opposed to the best interests of the Company or which involve intentional misconduct or knowing violation of the law or (ii) any indemnification obligation of the Manager from which an improper personal benefit shall have been derived by such Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationParty; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 6.03 shall be provided out of and to the extent such failure actually prejudices of the IndemnitorCompany assets only, and no Member, Manager or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such an Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full connection with any Loss within twenty (20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from to time, provided that such statement provides reasonable documentary evidence of such Costs and provides a written notice of claim therefor has been received undertaking by the IndemnitorIndemnified Party to repay any and all advanced Costs in the event such Indemnified Party is ultimately determined to not be entitled to indemnification by the Company. The Company may enter into agreements with its Managers to provide for indemnification consistent with the terms and conditions set forth in this Section 6.03.
(b) The Company shall have the power to indemnify any Person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the claimant may file fact that such Person was or is a Manager, Officer or employee or agent of the Company, or is or was serving at the request of the Company as a Manager, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Person in connection with such action, suit or proceeding to recover the unpaid amount full extent permitted by law or enter into agreements with any such Person for the purpose of providing for such claim andindemnification.
(c) The provisions of this Section 6.03 are for the benefit of the Indemnified Parties, if successful their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 6.03 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Company’s liability to any Indemnified Party under this Section 6.03 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, shall prior to such amendment, modification or repeal, regardless of when such claims may arise or be entitled to be paid the expenses of prosecuting such claimasserted.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextWave Wireless LLC)
Exculpation and Indemnification. Section 22(b) through Section 22(o) shall remain in effect until and shall terminate on the sixth (a6th) The Asset Manageranniversary of this Agreement and are solely for the benefit of the directors, officers, employees and agents of the Company prior to the date hereof.
a. Neither the Member nor any of its Affiliates and their respective Constituent Membersmembers, employees, managersagents, consultants and officers, directors, any of their respective affiliates, consultants, employees or agents or any Officer (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage, claim or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
expense (bincluding attorneys’ fees) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) . To the fullest extent permitted by applicable Lawlaw, Asset Manager an Indemnified Party shall be entitled to indemnification and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parentadvancement of expenses from the Company for any loss, damage, claim or expense (including attorneys’ fees) incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager authority conferred on such Indemnified Party pursuant to or in accordance with by this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationAgreement; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 22(a) shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will Member shall have no personal liability on account thereof.
b. To the fullest extent permitted by law as it currently exists and to such greater extent as applicable law hereafter may permit, but subject to the limitations expressly provided in this Agreement, the Company shall indemnify any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or other enterprise (including an employee benefit plan), association, government agency or political subdivision thereof or other entity (each, a “Person”) who was or is a party or is threatened to be made a party to, or otherwise requires representation of counsel in connection with, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that such Person is or was a director of the Company (“Director”) or officer of the Company prior to the date hereto (a “Previous Officer”), is or was serving as a tax matters partner of the Company or, at the request of the Company, as a director, officer, tax matters partner, employee, partner, manager, fiduciary or trustee of any of the Company or any Subsidiary thereof (“Company Group”) or any other Person (each an “Indemnitee”) or by reason of any action alleged to have been taken or omitted in such capacity, against losses, expenses (including attorneys’ fees), judgments, fines, damages, penalties, interest, liabilities and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such Person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the Person’s conduct was unlawful.
c. To the fullest extent permitted by law, but subject to the limitations expressly provided in this Agreement, the Company shall indemnify any Person who was or is a party or is threatened to be made a party to, or otherwise requires representation of counsel in connection with, any threatened, pending or completed action, suit or proceeding, by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Person was serving as an Indemnitee, or by reason of any action alleged to have been taken or omitted in such capacity, against losses, expenses (including attorneys’ fees), judgments, fines, damages, penalties, interest, liabilities and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person shall have been adjudged to be liable to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
d. To the extent an Indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 22(b) or Section 22(c), or in the defense of any claim, issue or matter therein, such settlement Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection therewith.
e. Any indemnification under Section 22(b) or Section 22(c) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Person has met the applicable standard of conduct set forth in such section. Such determination shall be made, without its prior written consent. If with respect to a Person who is a Director or Previous Officer at the Indemnitor is entitled totime of such determination, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have by the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned)Member, (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which by a committee designated by the Indemnitor may reasonably requestMember, and or (iii) if the Member so directs, by independent legal counsel in an opinion of Counsel.
f. Expenses (including attorneys’ fees) incurred by an Indemnitee in defending any action, suit or proceeding referred to in Section 22(b) or Section 22(c) shall be entitled to participate paid by the Company in (but not control) advance of the defense final disposition of any such action, with its own counsel suit or proceeding and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement advance of any claim determination that may such Indemnitee is not entitled to be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof indemnified, upon receipt of an undertaking by or on behalf of such Indemnified Party Indemnitee to repay such amount to the extent that if it shall ultimately be determined upon by final decision, judgment or order judicial decision from which there is no further right to appeal (whether or not subject to appeala “Final Adjudication”) that such Indemnified Party Person is not entitled to be indemnified hereunderby the Company as authorized in Section 22(b) through Section 22(o).
(fg. The indemnification, advancement of expenses and other provisions of Section 22(b) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20through Section 22(o) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party Indemnitee may be entitled under any agreement, pursuant to any action vote of the CompanyMember, as a matter of Law law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnified Party Indemnitee who has ceased to serve in such capacitycapacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
h. The Company may purchase and maintain insurance, on behalf of its Directors and Previous Officers, and such other Persons as the Member shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
i. For purposes of the definition of Indemnitee in Section 22(b), the Company shall be deemed to have requested a Person to serve as fiduciary of an employee benefit plan whenever the performance by such Person of his duties to the Company also imposes duties on, or otherwise involves services by, such Person to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 22(b); and action taken or omitted by such Person with respect to any employee benefit plan in the performance of such Person’s duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in, or not opposed to, the best interests of the Company.
j. Any indemnification pursuant to Section 22(b) through Section 22(o) shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
k. An Indemnitee shall not be denied indemnification in whole or in part under Section 22(b) through Section 22(o) because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
l. If a claim under Section 22(b) through Section 22(o) is not paid in full by the Company within 60 days after a written claim has been received by the Company, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall be entitled to be paid also the reasonable expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in this Agreement. Neither the failure of the Company (including independent legal counsel or the Member) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in this Agreement, nor an actual determination by the Company (including independent legal counsel or the Member) that the Indemnitee has not met the applicable standard of conduct shall create a presumption that the Indemnitee has not met the applicable standard of conduct, or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified or to such advancement of expenses, under Section 22(b) through Section 22(o) or otherwise shall be on the Company.
m. The Company may indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not an action by or in the right of the Company) by reason of the fact that the Person is or was an employee (other than an Officer or Previous Officer) or agent of the Company, or, while serving as an employee (other than an Officer or Previous Officer) or agent of the Company or is or was serving at the request of the Company as a director, officer, employee, partner, fiduciary, trustee or agent of another member of the Company Group or another Person to the extent (i) permitted by the laws of the State of Delaware as from time to time in effect, and (ii) authorized by the Member. The Company may, to the extent permitted by Delaware law and authorized by the Member, pay expenses (including attorneys’ fees) reasonably incurred by an such employee or agent in defending any civil, criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon such terms and conditions as the Member determines. The provisions of this Section 22(m) shall not constitute a contract right for any such employee or agent.
n. The indemnification, advancement of expenses and other provisions of Section 22(b) through Section 22(o) are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
o. Except to the extent otherwise provided in Section 22(m), the right to be indemnified and to receive advancement of expenses in Section 22(b) through Section 22(o) shall be a contract right. No amendment, modification or repeal of Section 22(b) through Section 22(o) or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of Section 22(b) through Section 22(o) as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Sources: Merger Agreement (Kinder Morgan Energy Partners L P)
Exculpation and Indemnification. (a) The Asset ManagerNone of the Member, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectivelyany trustee or manager of the Member, the Managers, Officers, the Plan Administrator, employees or agents of the Company (each, an “Manager Indemnified PartiesParty”) will not shall be liable to Parentthe Company, the Company Member, any Manager or any other person or entity who is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred
(a) by reason of their respective Subsidiariesany act or omission performed or omitted by such Indemnified Party on behalf of the Company, except that an Indemnified Party shall be liable for any such loss, damage or claim Case 17-11375-BLS Doc 2624-1 Filed 04/10/18 Page 46 of 60 WEIL:\96414082\15\76903.0004 2 0 incurred by reason of such Indemnified Party’s willful misconduct, bad faith, gross negligence or fraud. To the Parent Boardfullest extent permitted by applicable law, the General Partner, an Indemnified Party shall be entitled to indemnification from the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions claim incurred by such Indemnified Party by reason of any Manager act or omission performed or omitted by such Indemnified Party, pursuant except that no Indemnified Party shall be entitled to be indemnified in respect of any loss, damage or in accordance claim incurred by such Indemnified Party by reason of such Indemnified Party's willful misconduct, bad faith, gross negligence or fraud with this Agreement, except for any respect to such acts or omissions by any Manager omissions; provided, however, that the Member, Managers, Officers and other Indemnified Party constituting a Bad ActParties shall have no personal liability on account thereof.
(b) To the fullest extent permitted by applicable Lawlaw, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against notwithstanding any Manager Indemnified Party, each of which shall be a third-party beneficiary other provision of this Agreement solely for purposes of this Section 11or any duty otherwise existing at law or in equity, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager no Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for have (i) any act fiduciary duties to the Company, the Member or omission of any other person or entity who is a Manager Indemnified Party that constitutes a Bad Act party to or is otherwise bound by this Agreement, or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c)except as expressly set forth herein, any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure other duties to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as the Member or any other person or entity who is a matter party to or is otherwise bound by this Agreement; provided that nothing in this Section 23(b)23(b) shall eliminate the implied contractual covenant of Law or otherwise, good faith and shall continue as to an Indemnified Party who has ceased to serve in such capacityfair dealing.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Exculpation and Indemnification.
5.5.1. An Indemnified Party shall not be liable, responsible or accountable in damages or otherwise to the Partnership or to any Partner for any Loss incurred or suffered by reason of (i) any action or omission by the Indemnified Party, if such action or omission was taken in good faith, unless such Loss is primarily attributable to (A) the Indemnified Party’s Culpability with respect to such action or omission, or (B) the Indemnified Party’s action or omission that resulted in a material breach of this Agreement, or (ii) the mistake, action, inaction or negligence of brokers or other agents of the Partnership selected and monitored in good faith. In addition, an Indemnified Party that has retained an independent third-party selected as provided in 5.5.3 to provide professional services with respect to the Partnership or an Investment shall not be liable, responsible or accountable in damages or otherwise to the Partnership or to any Partner for any Loss incurred or suffered by reason of any action or omission by such independent third-party (notwithstanding that such third-party may have been Culpable with respect to such action or omission or the fact that the delegation to such other Person was not strictly necessary) unless the Indemnified Party was itself Culpable with respect to the appointment or supervision of such third- party.
5.5.2. The following provisions shall apply with regard to the Partnership’s obligations to indemnify an Indemnified Party:
(a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectivelyGeneral Partner acknowledges that the Initial Limited Partners may not be permitted under the laws of the Commonwealth of Kentucky to provide indemnification. As a result thereof, the “Manager Indemnified Parties”) will Initial Limited Partners shall not be liable obligated to Parentmake any indemnification payment to the extent not permitted under such laws. Representations, warranties and covenants made by the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board Initial Limited Partners in this Agreement or the membersSubscription Agreement shall be deemed to be modified so as to be consistent with the preceding sentence. Nothing contained herein, managers or partners however, shall relieve the Initial Limited Partners of Parent, the Company or any obligation it may have under this Agreement to contribute capital in respect of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with its Capital Commitment under this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) . To the fullest extent permitted by applicable Lawlaw, Company the Partnership, out of the Partnership Assets and not out of the separate assets of any Partner, shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against harmless, to the extent described below, any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party who was or is a party (or is threatened to be made a party) to any threatened, pending or completed action, suit or proceedings (collectively, a “Proceeding”), whether civil, criminal, administrative or investigative (including any act action by or in the right of the Partnership) from any Loss, and shall indemnify any Indemnified Party who has otherwise suffered a Loss, in either case by reason of any actions taken (or allegedly taken) by the Indemnified Party in connection with the Partnership, any Parallel Fund, or in connection with any involvement with a Portfolio Company or asset of the Partnership, any Parallel Fund, (including without limitation, serving as an officer, director, consultant, employee or a member of a creditors’ committee of any Portfolio Company), if such actions or omissions were taken in good faith, unless such Loss is primarily attributable to (A) the Indemnified Party’s Culpability with respect to such action or omission, or (B) the Indemnified Party’s action or omission performed or omitted by that resulted in a material breach of this Agreement; provided, that the Partnership shall not provide any indemnification with respect to any disputes solely among and between the General Partner, the Management Company, and any of them in good faith reliance their respective Affiliates (other than the Partnership to the extent that the Partnership is deemed to be an Affiliate), shareholders, employees, partners or members.
(b) If an Indemnified Party is entitled to indemnity from the Partnership under this Paragraph 5.5.2, it shall be indemnified, to the fullest extent allowed by law, for any Loss actually and reasonably incurred by such Indemnified Party to the extent it has not otherwise been reimbursed.
5.5.3. Notwithstanding any provision to the contrary, an Indemnified Party may act upon and in accordance with the opinion or advice of expertsor information obtained from legal advisers, including of legal counsel as to matters of lawbankers, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager other professional advisors believed by the Indemnified Party made in good faith and upon reasonable grounds to be expert in relation to the performance of this Agreement, except that there shall matters upon which he or she is consulted and to be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation independent of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amendedParty, and the regulations thereunder Indemnified Party shall not constitute a Bad Act.be liable to the Partnership or the Partners for anything done or suffered by it or them in good faith in reliance upon any such opinion, advice, statement or information.
(d) 5.5.4. The Indemnified Party will promptly notify General Partner shall provide prompt notice to the party against whom indemnity is claimed (the “Indemnitor”) Limited Partners of any claim for which it seeks indemnificationindemnification submitted by an Indemnified Party; provided, however, that no notice is required for the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice reimbursement of the claim. In such caseGeneral Partner, Management Company or any of their Affiliates by the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will Partnership of a Partnership Expense (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditionedother than a Partnership Expense described in Section 6.1.1(w), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned).
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement 5.5.5. For purposes of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.5.5:
Appears in 1 contract
Sources: Limited Partnership Agreement
Exculpation and Indemnification. 9.1 Each party to this Agreement (a“Indemnifying Party”) The Asset Managerwill defend, indemnify, and hold harmless the other party, its Affiliates and their respective Constituent Membersaffiliates, employees, managersofficers, consultants agents, and agents directors (collectively, the “Manager Indemnified Parties”) will from and against claims, actions, investigations, losses, damages, penalties, liabilities, costs, fines, and expenses of any kind whatsoever, including reasonable attorneys’ and experts’ fees and expenses (“Losses”) incurred by, imposed on, or asserted against any Indemnified Party arising from the breach of any of Indemnifying Party’s obligations under this Agreement or the negligence or willful misconduct of the Indemnifying Party (and, in the case of Employer, any Participant); except that, to the extent that such Losses were a consequence of the negligence or willful misconduct by any Indemnified Party, the Indemnifying Party shall have no obligation to indemnify any Indemnified Party. Any indemnification obligation discussed herein is limited to actual damages, reduced by any recovery the Indemnified Party receives from third parties, and does not extend to lost profits, indirect, special, incidental or consequential or punitive damages, whether or not foreseeable and regardless of the form of action in which such a claim may be brought.
9.2 Any party seeking indemnity under this Section 9 shall: (a) promptly after receiving notice of or becoming aware of a Loss for which indemnity may be sought, give the Indemnifying Party prompt written notice thereof, together with any and all documentation received which is related to such Loss; (b) give the Indemnifying Party full control over the defense and settlement of the Loss or related litigation; and (c)
9.3 Employer acknowledges and agrees that HMSC is to provide the Services based exclusively on the terms of this Agreement and the Plan Data provided by the Employer and Participants and that HMSC has no other obligations with respect to the Plan, Employer or Participants. HMSC shall have no duty to verify or investigate whether Plan Data it receives is properly authenticated, accurate and/or complete, and shall not be liable for acting (or failing to act) in accordance with Plan Data provided to it (including, but not limited to, instructions from Employer Contacts and Participants). HMSC shall have no duty to verify or investigate the source of any Plan securities or other property transferred to the custodian pursuant to the Employer’s direction, nor into the authority or right of the transferor of such securities or other property. HMSC shall have no responsibility for determining whether an Employer Contact’s or Participant’s instruction conforms to the terms of the Plan or complies with applicable law. HMSC shall not be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board Employer or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries Other Employer Plan for any acts action which Employer or omissions by any Manager Indemnified Party, pursuant a third party takes with respect to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Actthe Other Employer Plan.
(b) To the fullest extent permitted by applicable Law, Company 9.4 HMSC shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall not be a third-party beneficiary of this Agreement solely liable for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary service provider to the Plan, except as described in Section 1.2.
9.5 Neither party will be liable for or be deemed in default of its obligations under this Agreement to the extent that any delay or failure in performance of this Agreement solely for purposes results, directly or indirectly, from any cause beyond the reasonable control of this Section 11. For a party, including without limitation, acts of nature, acts of civil or military authority or other governmental actions, acts of terrorism, civil or labor disturbances or difficulties, fraud, forgery, malfunction of equipment or software (except where malfunction is primarily attributable to a party’s negligence in maintaining the avoidance of doubt, for purposes of this Section 11(cequipment or software), any Loss in respect failure of or arising from an act by the Asset Manager effect of rules or operations of any securities depository or external funds transfer system, quarantines, embargoes, epidemics, war, riots, fires, explosions, earthquakes, floods, unusually severe weather conditions, or interruptions in or unavailability of power or other utilities. Each party is responsible for its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974own acts and omissions relating to transmitting, as amendedreceiving, storing, and handling documents. Notwithstanding the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; providedforegoing, howevereach party, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defensewill provide for and maintain equipment, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party software, services, and does not impose any non-monetary remedies testing reasonably necessary to send and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedreceive electronic documents effectively and reliably.
(e) Expenses reasonably incurred by an Indemnified Party 9.6 Nothing in defense this Section 9 shall limit any rights or settlement of any claim remedies that may be subject available to a right either party under applicable law. The provisions of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 9 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action survive the termination of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacitythis Agreement.
Appears in 1 contract
Sources: Services Agreement
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates Company shall hold harmless and their respective Constituent Members, employees, managers, consultants and agents (collectively, indemnify the “Manager Indemnified Parties”) will not be liable Parties to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable LawLaw from any liability, Company shall loss, cost or expense (including judgments, fines, amounts paid in settlement, attorneys’ fees and does hereby agree expenses actually and reasonably incurred) (collectively, “Indemnifiable Losses”) that may accrue to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall or be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager such Indemnified Party (including in connection with any act action or omission performed proceeding in which such Indemnified Party is or omitted by any of them in good faith reliance upon and in accordance with the opinion may become involved, as a party or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accountingotherwise, or with which such Indemnified Party may be threatened, relating to or arising out of investment bankers the conduct of the affairs of the Group Companies or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) otherwise in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of with this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationmatters contemplated herein; provided, however, that the failure (i) no indemnification may be made to so notify the Indemnitor will not relieve the Indemnitor from or on behalf of any liability which it may have hereunder, except Indemnified Party to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall Indemnifiable Losses are found by a court of competent jurisdiction in a non-appealable final judgment or in a duly constituted arbitration proceeding (a) to have the right to assume the defense resulted from bad faith, active and settlement deliberate dishonesty, fraud, willful misconduct, gross negligence, (b) a violation of applicable Law or (c) a material breach of this Agreement by such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) no Indemnified Party shall be obligated entitled to cooperate in furnishing evidence indemnification hereunder from and testimony against any claims, liabilities, damages, losses, costs or expenses arising with respect to any controversies between or among the Members or each of their respective officers, directors, equity holders, members, employees and in any other manner in partners to which the Indemnitor may reasonably request, Company is not a party and (iii) be entitled the Company’s obligations hereunder shall not apply with respect to participate losses of an Indemnified Party’s investment in (but not control) the defense Company or tax obligations incurred by any Indemnified Party as a result of such Indemnified Party’s ownership of an interest in the Company or investments made by the Company or its Affiliates. The termination of any such actionproceeding by judgment, with order, settlement, conviction, or upon a plea of nolo contendere or its own counsel and at its own expense. In additionequivalent, if the Indemnitor assumes such defenseshall not, the Indemnitor may settle any such claim without the prior consent of itself, create a presumption that the Indemnified Party if did not satisfy the foregoing standard of conduct that would entitle such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedto indemnification pursuant to this Section 4.7(a).
(eb) Expenses (including reasonable attorney’s fees) reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) hereunder shall be advanced by the Indemnitor Company prior to the final disposition thereof upon receipt of an a written undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) ultimately that such Indemnified Party is not entitled to be indemnified hereunder; provided, that the Company shall have no obligation to make any advances to any Indemnified Party in connection with any claim by any Group Company against such Indemnified Party, or by such Indemnified Party against any Group Company.
(fc) If a claim for The right of any Indemnified Party to the indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, provided herein shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be cumulative of, and in addition to to, any other and all rights to which an such Indemnified Party may otherwise be entitled under any agreement, pursuant to any action of the Company, by contract or as a matter of Law or otherwiseequity and shall extend to such Indemnified Party’s successors, assigns and legal representatives.
(d) An Indemnified Party shall obtain the written consent of the Board of Managers prior to entering into any compromise or settlement which would result in an obligation of the Company to indemnify such Indemnified Party, which consent shall not be unreasonably withheld or delayed. If liabilities arise out of the conduct of the affairs of the Company and any other Person for which the Indemnified Party was then acting in a similar capacity, the amount of the indemnification provided by the Company shall be limited to the Company’s proportionate share thereof as determined in good faith by the Board of Managers.
(e) The Board of Managers shall cause the Company to purchase, at the Company’s expense, insurance to insure the Indemnified Parties against liability for any breach or alleged breach of their responsibilities under this Agreement or otherwise in connection with activities of the Company regardless of whether such insurance insures against liability for which indemnification by the Company is not permitted under the terms of this Agreement.
(f) The Indemnified Parties may consult with legal counsel and accountants selected by them and any act or omission suffered or taken by them on behalf of the Company or in furtherance of the interests of the Company in good faith in reasonable reliance upon and in accordance with the advice of such counsel or accountants shall be full justification for any such act or omission, and such Indemnified Parties shall continue as be fully protected in so acting or omitting to act; provided that such counsel or accountants were selected with reasonable care.
(g) Prior to the Company making or any other Group Company making any indemnification payment to an Indemnified Party, such Indemnified Party who shall first establish to the reasonable satisfaction of the Board of Managers that such Indemnified Party has ceased taken reasonable steps to serve seek recovery under any other indemnity or any insurance policies by which such Person is indemnified or covered, as the case may be, and to preserve the Company’s subrogation rights as contemplated by Section 4.7(h).
(i) The Company hereby acknowledges that certain Indemnified Parties may have certain rights to indemnification and/or insurance provided by a Member and/or certain of their Affiliates (collectively, the “Other Indemnitors”). The Company hereby agrees that it is the indemnitor of first resort (i.e., its obligations to each Indemnified Party are primary and those of the Other Indemnitors are secondary), it shall be liable for the full amount of all Indemnifiable Losses to the extent legally permitted and that it irrevocably waives any claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Other Indemnitors on behalf of any Indemnified Party with respect to any claim for which such capacityIndemnified Party has sought indemnification from the Company shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Party against the Company.
(ii) Except as provided in Section 4.7(h)(i) above, in the event of any payment of Indemnifiable Losses under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of contribution or recovery of the Indemnified Party against other Persons (other than the Other Indemnitors), and the Indemnified Party shall take, at the request of the Company, all reasonable action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. Notwithstanding anything to the contrary contained herein, this Section 4.7(h) shall be for the exclusive benefit of the Other Indemnitors and shall not result in any benefit to, or right of, any other Person.
(i) The provisions of this Section 4.7 shall continue to afford protection to each Indemnified Party regardless of whether such Indemnified Party remains in the position or capacity pursuant to which such Indemnified Party became entitled to indemnification under this Section 4.7 and regardless of any subsequent amendment to this Agreement, and no amendment to this Agreement shall reduce or restrict the extent to which these indemnification provisions apply to actions taken or omissions made prior to the date of such amendment.
Appears in 1 contract
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent None of the Members, employeesOfficers, managers, consultants and agents or Managers (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board for any loss, damage, or the members, managers or partners of Parent, the Company claim (a “Loss”) (or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Partycosts associated therewith, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
including without limitation legal fees and expenses (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any Loss or Costs incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any Loss or arising from any Costs incurred by such Indemnified Party by reason of such Indemnified Party’s gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 5.04 shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor of Company assets only, and no Member, Manager, or Officer shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions personal liability on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedaccount thereof.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: LLC Interest Purchase Agreement (Mister Goody, Inc.)
Exculpation and Indemnification. Neither the Shareholder, any Manager nor any officer of the Company (a) The Asset Managereach, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss claim incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them the Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager the authority conferred on the Indemnified Party made in the performance of by this Agreement, except that there the Indemnified Party shall be no indemnification liable for (i) any act such loss, damage or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation claim incurred by reason of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement Party’s willful misconduct or the Losses related thereto.
(c) gross negligence. To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parentlaw, the Indemnified Party shall be entitled to indemnification from the Company for any loss, damage or claim incurred by the Indemnified Party by reason of any act or omission performed or omitted by the Indemnified Party in good faith on behalf ofthe Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on the Indemnified Party, employees, managers, consultants and agents (collectively, except that the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall not be entitled to be indemnified in respect of any loss, damage or arising from any claim incurred by the Indemnified Party by reason of willful misconduct or gross negligence with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Article IV shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will Shareholder shall not have any liability on account thereof Notwithstanding anything herein to the contrary, the indemnification afforded herein shall be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled subject to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Partyno broader than permitted by, the Indemnified Party will (i) have the right laws of Delaware and all laws applicable to approve the Indemnitor’s counsel (which approval will not be unreasonably withheldWPP pic and its subsidiaries, delayed or conditioned)including, (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defensewithout limitation, the Indemnitor may settle any such claim without Companies ▇▇▇ ▇▇▇▇ of England and Wales and all applicable limitations set forth therein, in the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred absence ofthe approval ofthe Shareholder. Received by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced NSD/FARA Registration Unit 03/02/2021 6:16:32 PM Received by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.NSD/FARA Registration Unit 03/02/2021 6:16:32 PM
Appears in 1 contract
Sources: Limited Liability Company Agreement
Exculpation and Indemnification. (a) The Asset ManagerNone of the Member, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectivelyany trustee or manager of the Member, the Managers, Officers, the Plan Administrator, employees or agents of the Company (each, an “Manager Indemnified PartiesParty”) will not shall be liable to Parentthe Company, the Company Member, any Manager or any other person or entity who is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred Case 17-11375-BLS Doc 2624-1 Filed 04/10/18 Page 15 of their respective Subsidiaries60 by reason of any act or omission performed or omitted by such Indemnified Party on behalf of the Company, except that an Indemnified Party shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Party’s willful misconduct, bad faith, gross negligence or fraud. To the Parent Boardfullest extent permitted by applicable law, the General Partner, an Indemnified Party shall be entitled to indemnification from the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions claim incurred by such Indemnified Party by reason of any Manager act or omission performed or omitted by such Indemnified Party, pursuant except that no Indemnified Party shall be entitled to be indemnified in respect of any loss, damage or in accordance claim incurred by such Indemnified Party by reason of such Indemnified Party's willful misconduct, bad faith, gross negligence or fraud with this Agreement, except for any respect to such acts or omissions by any Manager omissions; provided, however, that the Member, Managers, Officers and other Indemnified Party constituting a Bad ActParties shall have no personal liability on account thereof.
(b) To the fullest extent permitted by applicable Lawlaw, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against notwithstanding any Manager Indemnified Party, each of which shall be a third-party beneficiary other provision of this Agreement solely for purposes of this Section 11or any duty otherwise existing at law or in equity, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager no Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for have (i) any act fiduciary duties to the Company, the Member or omission of any other person or entity who is a Manager Indemnified Party that constitutes a Bad Act party to or is otherwise bound by this Agreement, or (ii) except as expressly set forth herein, any indemnification obligation other duties to the Company, the Member or any other person or entity who is a party to or is otherwise bound by this Agreement; provided that nothing in this Section 23(b) shall eliminate the implied contractual covenant of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related theretogood faith and fair dealing.
(c) To the fullest extent permitted by applicable Lawlaw, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents expenses (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Companyincluding reasonable legal fees) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense defending any claim, demand, action, suit or settlement of any claim that may be subject proceeding shall, from time to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall time, be advanced by the Indemnitor Company prior to the final disposition thereof of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that if it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunderas authorized in this Section 23.
(fd) If a Notwithstanding the fact that the Member, or any of its affiliates, other than the Company (together, the “Sponsor Parties”), may have concurrent liability to an Indemnified Person with respect to indemnity and/or advancement obligations, the Company and its subsidiaries shall be the indemnitor of first resort (and the liability of any Sponsor Party for such indemnity and/or advancement shall be secondary) and the Company and its subsidiaries shall have no right or claim against any of the Sponsor Parties for indemnification contribution or have rights of subrogation against any Sponsor Parties through an Indemnified Person with respect to any indemnity or advancement obligation provided pursuant to this Section 23. In the event that any Sponsor Party pays or advances an Indemnified Person any amount with respect to an indemnity or advancement obligation, the Company will, or will cause its subsidiaries to, as applicable, promptly reimburse such Sponsor Party for such payment or advance upon request. For the avoidance of reasonable expenses hereunder is not doubt, any insurance coverage for any indemnity or advancement obligation provided by, obtained by or paid in full within twenty (20) days after a written notice of claim therefor has been received for by the Indemnitor, Company or any of its subsidiaries on the claimant may file suit to recover one hand and any Sponsor Party on the unpaid amount of such claim and, if successful in whole or in part, other hand shall be entitled subject to be paid the expenses of prosecuting such claimsame primary and secondary liability hierarchy set forth in this Section 23(d).
(ge) The indemnification provided by this Section 11 Company shall be in addition to purchase and maintain insurance on behalf of the Indemnified Parties against any other rights to liability which an Indemnified Party may be entitled under asserted against, or expense which may be incurred by, any agreement, pursuant to any action such Person in connection with the business of the Company and the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity’s other activities.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will not No Responsible Party shall be liable to Parenta Bound Party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Responsible Party in good faith on behalf of the Company or any and in a manner reasonably believed to be within the scope of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions authority conferred on such Responsible Party by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Responsible Party engaged in intentional fraud or omissions by any Manager Indemnified Party constituting a Bad Actintentional malfeasance.
(b) To the fullest extent permitted by applicable Lawlaw, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which a Responsible Party shall be a third-party beneficiary of this Agreement solely entitled to indemnification from the Company for purposes of this Section 11any loss, from and against any Loss damage or claim incurred by them for any act or omission taken or suffered such Responsible Party by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Responsible Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Responsible Party made in the performance of by this Agreement, except that there no Responsible Party shall be entitled to be indemnified in respect of any loss, damage or claim willful misconduct with respect to such acts or omissions, provided, however, that any indemnity under this Section 18 shall be provided out of and to the extent of Company assets only, and the Member shall have no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related theretopersonal liability on account thereof.
(c) To the fullest extent permitted by applicable Lawlaw, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parentexpenses (including reasonable legal fees) incurred by a Responsible Party in defending any claim, the Company and its Subsidiaries and each of their respective Constituent Membersdemand, employeesaction, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”)suit or proceeding shall, from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant time to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubttime, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor Company prior to the final disposition thereof of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of such Indemnified the Responsible Party to repay such amount to the extent that of it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified the Responsible Party is not entitled to be indemnified hereunderas authorized in this Section 18.
(d) A Responsible Party shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by the person or entity as to the matters the Responsible Party reasonably believes are with been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.
(e) The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Responsible Party otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Responsible Party.
(f) If a claim for indemnification or payment The foregoing provisions of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 18 shall be in addition to survive any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action termination of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacitythis Agreement.
Appears in 1 contract
Sources: Third Amended and Restated Limited Liability Company Agreement
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will Member shall not be liable to Parentthe Issuer, the Company or Co-Issuer, any holder of their respective Subsidiariesthe Notes, any holder of the Parent BoardPreferred Shares, any holder of ordinary shares of the General Partner, the Company Board Issuer or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries Collateral Manager (i) for any losses incurred as a result of the actions taken or omitted to be taken by the Member pursuant to the provisions of this Exhibit B-▇ or the Advisory Committee Guidelines, except that the Member may be so liable to the extent such losses are the result of acts or omissions constituting willful misconduct, fraud or gross negligence by any Manager Indemnified Party, pursuant to the Member in the performance of its obligations hereunder or in accordance with this Agreement, except under the Advisory Committee Guidelines or (ii) for any the acts or omissions by of any Manager Indemnified Party constituting a Bad Actother member of the Advisory Committee.
(b) To The Issuer shall indemnify the fullest extent permitted by applicable LawMember for, Company shall and does hereby agree to indemnify and hold the Member harmless against, any loss, liability or expense (including without limitation reasonable attorneys’ fees and pay all judgments expenses) incurred arising out of or in connection with the Member’s service as a member of the Advisory Committee, including the costs and claims expenses of defense against any Manager Indemnified Party, each claim or liability in connection with the exercise or performance of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion its powers or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents duties hereunder (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified PartiesLosses”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so Issuer shall not indemnify the Member for any Losses incurred as a result of acts or omissions constituting willful misconduct, fraud or gross negligence by the Member in the performance of its obligations hereunder or under the Advisory Committee Guidelines.
(c) If any action shall be instituted involving the Member for which indemnification hereunder may be applicable, such Member shall promptly notify the Indemnitor will not relieve Issuer and the Indemnitor from any liability which it may have hereunder, except to Collateral Manager in writing and the extent such failure actually prejudices the Indemnitor. The Indemnitor Issuer shall have the right to assume retain counsel reasonably satisfactory to the defense Issuer and settlement the Collateral Manager to represent the Member and any others the Issuer may designate in such proceeding and shall pay the reasonable fees and disbursements of such claim; providedcounsel related to such proceeding. In any such proceeding, the Member shall have the right to retain individual counsel, but the fees and expenses of such counsel shall be at the expense of the Member unless (i) the Issuer and the Member shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include the Member and the Issuer and representation of all such parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnitor notifies Issuer shall not, in connection with any proceeding or related proceedings in the Indemnified Party same jurisdiction, be liable for the fees and expenses of its election more than one separate firm (in addition to assume such defense any local counsel) for the Member and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice any other members of the claim. In such case, the Indemnified Party will not settle or compromise such claimAdvisory Committee, and the Indemnitor will that all such reasonable fees and expenses shall be reimbursed as they are incurred. The Issuer shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Issuer agrees, subject to the limitations noted herein, to indemnify the Member from and against any loss or liability by reason of such settlement madeor judgment. The Issuer shall not, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior written consent of the Indemnified Party if Member, effect any settlement of any pending or threatened proceeding in respect of which the Member is or is likely to have been a party, unless such settlement involves the full includes an unconditional release of the Indemnified Party and does not impose Member from all liability on claims that are the subject matter of such proceeding. Notwithstanding the foregoing, if any non-monetary remedies and conditions on person shall pay the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of Member any claim that may be subject to a right amount of indemnification pursuant to Section 11(b) or Section 11(c) this Paragraph 4, such person shall be advanced by the Indemnitor prior succeed to the final disposition thereof upon receipt rights of an undertaking by or on behalf of such Indemnified Party to repay such amount the Issuer, to the extent that it shall be determined upon final decisionexclusion of the Issuer, judgment or order set forth in this Paragraph 4(c) (whether or including, but not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitorlimited to, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action right of the Company, as a matter Issuer to retain counsel to represent the Member in any related proceeding and to effect any settlement of Law any related pending or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacitythreatened proceeding).
Appears in 1 contract
Sources: Sale and Purchase Agreement (Gramercy Capital Corp)
Exculpation and Indemnification. Section 22(b) through Section 22(o) shall remain in effect until and shall terminate on the sixth (a6th) The Asset Manageranniversary of this Agreement and are solely for the benefit of the directors, officers, employees and agents of the Company on or prior to the date hereof.
a. Neither the Member nor any of its Affiliates and their respective Constituent Membersmembers, employees, managersagents, consultants and officers, directors, any of their respective affiliates, consultants, employees or agents or any Officer (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage, claim or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
expense (bincluding attorneys’ fees) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) . To the fullest extent permitted by applicable Lawlaw, Asset Manager an Indemnified Party shall be entitled to indemnification and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parentadvancement of expenses from the Company for any loss, damage, claim or expense (including attorneys’ fees) incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager authority conferred on such Indemnified Party pursuant to or in accordance with by this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationAgreement; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 22(a) shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will Member shall have no personal liability on account thereof.
b. To the fullest extent permitted by law as it currently exists and to such greater extent as applicable law hereafter may permit, but subject to the limitations expressly provided in this Agreement, the Company shall indemnify any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or other enterprise (including an employee benefit plan), association, government agency or political subdivision thereof or other entity (each, a “Person”) who was or is a party or is threatened to be made a party to, or otherwise requires representation of counsel in connection with, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that such Person is or was a director of the Company (“Director”) or Officer, is or was serving as a tax matters partner of the Company or, at the request of the Company, as a director, officer, tax matters partner, employee, partner, manager, fiduciary or trustee of any of the Company or any Subsidiary thereof (“Company Group”) or any other Person (each an “Indemnitee”) or by reason of any action alleged to have been taken or omitted in such capacity, against losses, expenses (including attorneys’ fees), judgments, fines, damages, penalties, interest, liabilities and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such Person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the Person’s conduct was unlawful.
c. To the fullest extent permitted by law, but subject to the limitations expressly provided in this Agreement, the Company shall indemnify any Person who was or is a party or is threatened to be made a party to, or otherwise requires representation of counsel in connection with, any threatened, pending or completed action, suit or proceeding, by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Person was serving as an Indemnitee, or by reason of any action alleged to have been taken or omitted in such capacity, against losses, expenses (including attorneys’ fees), judgments, fines, damages, penalties, interest, liabilities and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person shall have been adjudged to be liable to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
d. To the extent an Indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 22(b) or Section 22(c), or in the defense of any claim, issue or matter therein, such settlement Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection therewith.
e. Any indemnification under Section 22(b) or Section 22(c) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Person has met the applicable standard of conduct set forth in such section. Such determination shall be made, without its prior written consent. If with respect to a Person who is a Director or Officer at the Indemnitor is entitled totime of such determination, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have by the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned)Member, (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which by a committee designated by the Indemnitor may reasonably requestMember, and or (iii) if the Member so directs, by independent legal counsel in an opinion of Counsel.
f. Expenses (including attorneys’ fees) incurred by an Indemnitee in defending any action, suit or proceeding referred to in Section 22(b) or Section 22(c) shall be entitled to participate paid by the Company in (but not control) advance of the defense final disposition of any such action, with its own counsel suit or proceeding and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement advance of any claim determination that may such Indemnitee is not entitled to be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof indemnified, upon receipt of an undertaking by or on behalf of such Indemnified Party Indemnitee to repay such amount to the extent that if it shall ultimately be determined upon by final decision, judgment or order judicial decision from which there is no further right to appeal (whether or not subject to appeala “Final Adjudication”) that such Indemnified Party Person is not entitled to be indemnified hereunderby the Company as authorized in Section 22(b) through Section 22(o).
(fg. The indemnification, advancement of expenses and other provisions of Section 22(b) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20through Section 22(o) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party Indemnitee may be entitled under any agreement, pursuant to any action vote of the CompanyMember, as a matter of Law law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnified Party Indemnitee who has ceased to serve in such capacitycapacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
h. The Company may purchase and maintain insurance, on behalf of its Directors and Officers, and such other Persons as the Member shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
i. For purposes of the definition of Indemnitee in Section 22(b), the Company shall be deemed to have requested a Person to serve as fiduciary of an employee benefit plan whenever the performance by such Person of his duties to the Company also imposes duties on, or otherwise involves services by, such Person to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 22(b); and action taken or omitted by such Person with respect to any employee benefit plan in the performance of such Person’s duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in, or not opposed to, the best interests of the Company.
j. Any indemnification pursuant to Section 22(b) through Section 22(o) shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
k. An Indemnitee shall not be denied indemnification in whole or in part under Section 22(b) through Section 22
l. If a claim under Section 22(b) through Section 22(o) is not paid in full by the Company within 60 days after a written claim has been received by the Company, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall be entitled to be paid also the reasonable expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in this Agreement. Neither the failure of the Company (including independent legal counsel or the Member) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in this Agreement, nor an actual determination by the Company (including independent legal counsel or the Member) that the Indemnitee has not met the applicable standard of conduct shall create a presumption that the Indemnitee has not met the applicable standard of conduct, or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified or to such advancement of expenses, under Section 22(b) through Section 22(o) or otherwise shall be on the Company.
m. The Company may indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not an action by or in the right of the Company) by reason of the fact that the Person is or was an employee (other than an Officer) or agent of the Company, or, while serving as an employee (other than an Officer) or agent of the Company or is or was serving at the request of the Company as a director, officer, employee, partner, fiduciary, trustee or agent of another member of the Company Group or another Person to the extent (i) permitted by the laws of the State of Delaware as from time to time in effect, and (ii) authorized by the Member. The Company may, to the extent permitted by Delaware law and authorized by the Member, pay expenses (including attorneys’ fees) reasonably incurred by an such employee or agent in defending any civil, criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon such terms and conditions as the Member determines. The provisions of this Section 22(m) shall not constitute a contract right for any such employee or agent.
n. The indemnification, advancement of expenses and other provisions of Section 22(b) through Section 22(o) are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
o. Except to the extent otherwise provided in Section 22(m), the right to be indemnified and to receive advancement of expenses in Section 22(b) through Section 22(o) shall be a contract right. No amendment, modification or repeal of Section 22(b) through Section 22 (o) or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of Section 22 (b) through Section 22(o) as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Exculpation and Indemnification. (a) The Asset ManagerNeither the Investment Manager nor any of its partners, its Affiliates and their respective Constituent Membersaffiliates, directors, officers, employees, managersshareholders, consultants members and other agents (collectivelyeach, the an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board Fund, any Vehicle or to the Partners of the Fund for monetary damages for any losses, claims, damages or liabilities (“Damages”) arising from any act performed or omitted by such parties arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the members, managers or partners of Parent, the Company Fund’s or any Vehicle’s business or affairs, including, without limitation, all activities of their respective Subsidiaries for the type or character disclosed in the Fund’s confidential private placement memorandum, as it may have been supplemented or amended (such disclosure being incorporated herein by reference), except to the extent that any acts such Damages are primarily attributable to the gross negligence or omissions by any Manager willful misconduct of such Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b1) To The Fund shall, to the fullest extent permitted by applicable Lawlaw, Company shall and does hereby agree to indemnify indemnify, defend and hold harmless and pay all judgments and claims the Indemnified Parties against any Damages to which the Indemnified Party may become subject in connection with any matter arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the Fund’s business or affairs, except, with respect to any Indemnified Party to the extent that any such Damages are primarily attributable to the gross negligence or willful misconduct of such Indemnified Party. If the Indemnified Party becomes involved in any capacity in any action, proceeding or investigation in connection with any matter arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the Fund’s business or affairs, the Fund shall reimburse the Indemnified Party for its reasonable legal and other expenses (including the cost of any investigation and preparation) as they are incurred in connection therewith; provided that the Indemnified Party shall promptly repay to the Fund the amount of any such reimbursed expenses paid to it if it shall ultimately be finally determined that the Indemnified Party was not entitled to be indemnified by the Fund in connection with such action, proceeding or investigation. If for any reason (other than by reason of the exclusions from indemnification hereinabove set forth) the foregoing indemnification is unavailable to the Indemnified Party, each or insufficient to hold it harmless, then the Fund shall contribute to the amount paid or payable by the Indemnified Party as a result of which shall be a third-party beneficiary of this Agreement solely for purposes such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the Fund on the one hand and the Indemnified Party on the other hand or, if such allocation is not permitted by applicable law, to reflect not only the relative benefits referred to above but also any other relevant equitable considerations.
(2) The provisions of this Section 113.1(b) shall survive for a period of three years from the date of dissolution of the Fund; provided that if at the end of such period there are any actions, from and against any Loss incurred by them for any act proceedings or omission taken or suffered by each Manager investigations then pending, the Indemnified Party shall notify the General Partner and the General Partner shall so notify the Fund and the Partners of the Fund at such time (including which notice shall include a brief description of each such action, proceeding or investigation and the liabilities asserted therein) and the provisions of this Section 3.1(b) shall survive with respect to each such action, proceeding or investigation set forth in such notice (or any act related action, proceeding or omission performed investigation based upon the same or omitted by any of them in good faith reliance upon similar claim) until the date that such action, proceeding or investigation is finally resolved; and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, further, that such Persons were selected and monitored with reasonable carethe obligations of the Fund under this Section 3.1(b) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission satisfied solely out of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation Fund assets, subject to the right of the Manager Indemnified Parties liquidator of the Fund to establish reserves, pursuant to the Fund Partnership Agreement for contingent obligations under this Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto3.1(b).
(c) To No member of the fullest extent permitted by applicable Law, Asset Manager General Partner or Partner of the Fund shall and does hereby agree have any obligation to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each Fund or any other Partner of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against Fund to bring or join in any Loss incurred by them action in respect defense of or arising from any acts or omissions by any Manager an Indemnified Party pursuant to Section 3.1 (a) or (b). Nothing contained in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) Section 3.1 shall be a third-party beneficiary construed as any waiver of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of insurance claims or arising from an act recoveries by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad ActFund or an Indemnified Party.
(d) The remedies of an Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; providedunder this Article III shall be non-exclusive and, howeverwithout duplication, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent each such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in may pursue any other manner remedy provided in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed law or conditionedequity.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement The provisions of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) this Article III shall be advanced by the Indemnitor prior inure to the final disposition thereof upon receipt benefit of an undertaking by or on behalf the Indemnified Parties, and any successors, assigns, heirs and personal representatives of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunderParties.
(f) If a claim The Fund covenants and agrees to call for indemnification or payment of reasonable expenses hereunder is not paid Capital Contributions from its Partners, to the extent permitted in full within twenty (20) days after a written notice of claim therefor has been received by the IndemnitorFund Partnership Agreement, to satisfy the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claimFund’s obligations under this Article III.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Fund Ii Investment Management Agreement (Capital Trust Inc)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will Member shall not be liable to Parentthe Issuer, the Company or Co-Issuer, any holder of their respective Subsidiariesthe Notes, any holder of the Parent BoardPreferred Shares, any holder of ordinary shares of the General Partner, the Company Board Issuer or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries Collateral Manager (i) for any losses incurred as a result of the actions taken or omitted to be taken by the Member pursuant to the provisions of this Exhibit B-▇ or the Advisory Committee Guidelines, except that the Member may be so liable to the extent such losses are the result of acts or omissions constituting willful misconduct, fraud or gross negligence by any Manager Indemnified Party, pursuant to the Member in the performance of its obligations hereunder or in accordance with this Agreement, except under the Advisory Committee Guidelines or (ii) for any the acts or omissions by of any Manager Indemnified Party constituting a Bad Actother member of the Advisory Committee.
(b) To The Issuer shall indemnify the fullest extent permitted by applicable LawMember for, Company shall and does hereby agree to indemnify and hold the Member harmless against, any loss, liability or expense (including without limitation reasonable attorneys’ fees and pay all judgments expenses) incurred arising out of or in connection with the Member’s service as a member of the Advisory Committee, including the costs and claims expenses of defense against any Manager Indemnified Party, each claim or liability in connection with the exercise or performance of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion its powers or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents duties hereunder (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified PartiesLosses”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so Issuer shall not indemnify the Member for any Losses incurred as a result of acts or omissions constituting willful misconduct, fraud or gross negligence by the Member in the performance of its obligations hereunder or under the Advisory Committee Guidelines.
(c) If any action shall be instituted involving the Member for which indemnification hereunder may be applicable, such Member shall promptly notify the Indemnitor will not relieve Issuer and the Indemnitor from any liability which it may have hereunder, except to Collateral Manager in writing and the extent such failure actually prejudices the Indemnitor. The Indemnitor Issuer shall have the right to assume retain counsel reasonably satisfactory to the defense Issuer and settlement the Collateral Manager to represent the Member and any others the Issuer may designate In such proceeding and shall pay the reasonable fees and disbursements of such claim; providedcounsel related to such proceeding. In any such proceeding, the Member shall have the right to retain individual counsel, but the fees and expenses of such counsel shall be at the expense of the Member unless (i) the Issuer and the Member shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include the Member and the Issuer and representation of all such parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnitor notifies Issuer shall not, in connection with any proceeding or related proceedings in the Indemnified Party same jurisdiction, be liable for the fees and expenses of its election more than one separate firm (in addition to assume such defense any local counsel) for the Member and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice any other members of the claim. In such case, the Indemnified Party will not settle or compromise such claimAdvisory Committee, and the Indemnitor will that all such reasonable fees and expenses shall be reimbursed as they are incurred. The Issuer shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Issuer agrees, subject to the limitations noted herein, to indemnify the Member from and against any loss or liability by reason of such settlement madeor judgment. The Issuer shall not, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior written consent of the Indemnified Party if Member, effect any settlement of any pending or threatened proceeding in respect of which the Member is or is likely to have been a party, unless such settlement involves the full includes an unconditional release of the Indemnified Party and does not impose Member from all liability on claims that are the subject matter of such proceeding. Notwithstanding the foregoing, if any non-monetary remedies and conditions on person shall pay the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of Member any claim that may be subject to a right amount of indemnification pursuant to Section 11(b) or Section 11(c) this Paragraph 4, such person shall be advanced by the Indemnitor prior succeed to the final disposition thereof upon receipt rights of an undertaking by or on behalf of such Indemnified Party to repay such amount the Issuer, to the extent that it shall be determined upon final decisionexclusion of the Issuer, judgment or order set forth in this Paragraph 4(c) (whether or including, but not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitorlimited to, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action right of the Company, as a matter Issuer to retain counsel to represent the Member in any related proceeding and to effect any settlement of Law any related pending or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacitythreatened proceeding).
Appears in 1 contract
Sources: Sale and Purchase Agreement (Gramercy Capital Corp)
Exculpation and Indemnification. (a) The Asset No Member (including the Manager, in such capacity) nor any of its Affiliates and nor any of their respective Constituent current or former Members, members, shareholders (or other Equity Security holders), officers, directors, employees, managersconsultants, consultants and agents or representatives (each an “Indemnified Party” and, collectively, the “Manager Indemnified Parties”) will not shall be liable liable, in damages or otherwise, to Parent, the Company or to any of their respective Subsidiaries, the Parent Board, Members for any act or omission performed or omitted by such Indemnified Party in connection with the General Partner, the Company Board or the members, managers or partners conduct of Parent, affairs of the Company or otherwise incurred in connection with the Company or this Agreement or the matters contemplated herein; provided, that no indemnification shall be granted to any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to that is not an individual, for
(i) any act or in accordance with omission of such Indemnified Party or any Related Indemnitee resulting from such Person’s own fraud, criminal or willful misconduct, gross negligence or bad faith,
(ii) any breach by such Indemnified Party or any Related Indemnitee of any of the terms and provisions of this Agreement, except or
(iii) any breach by an Indemnified Party or any Related Indemnitee of any contract with the Company; and provided further, that no indemnification shall be granted to any Indemnified Party that is an individual for any acts act or omissions by any Manager omission of such Indemnified Party constituting a Bad Actor any Related Indemnitee resulting from such individual’s own fraud or criminal or willful misconduct.
(b) To The Company shall indemnify, defend and hold harmless, to the fullest extent permitted by applicable Lawlaw, the Indemnified Parties, from and against any loss, damage, expense, claim or liability of any kind or nature whatsoever that such Indemnified Party may at any time become subject to or liable for any reason arising out of this Agreement or in connection with the conduct of the affairs of the Company; provided, that no Indemnified Party that is not an individual shall be entitled to indemnification if and to the extent that the liability otherwise to be indemnified for results from
(i) any act or omission of such Indemnified Party or any Related Indemnitee resulting from such Person’s own fraud, criminal or willful misconduct, gross negligence or bad faith,
(ii) any breach by such Indemnified Party or any Related Indemnitee of any of the terms and provisions of this Agreement, or
(iii) any breach by an Indemnified Party or any Related Indemnitee of any contract with the Company; and provided further, that no indemnification shall be granted to any Indemnified Party that is an individual for any act or omission of such Indemnified Party or any Related Indemnitee resulting from such individual’s own fraud or criminal or willful misconduct.
(c) Expenses (including reasonable legal fees) incurred by an Indemnified Party in defense or settlement of any claim or liability that may be subject to a right of indemnification hereunder shall be reimbursed by the Company upon the final disposition of any such proceeding and, thereafter, upon receipt of a written request from such Indemnified Party requesting reimbursement of such amount, if it has been determined by a court of competent jurisdiction that the Indemnified Party is entitled to be indemnified hereunder.
(d) The right of any Indemnified Party to the indemnification provided herein shall be cumulative of, and does hereby agree in addition to, any and all rights to which such Indemnified Party may otherwise be entitled by contract or as a matter of law or equity and shall extend to such Indemnified Party’s successors, assigns and legal representatives.
(e) If the Company, the Manager, any Member or any Affiliate of a Member or the Company is required by law to make any payment on behalf of a Member (including without limitation federal or foreign withholding taxes), then the Company (if permitted to without incurring any penalties) shall notify such Member of such obligation and such Member shall have the opportunity to make such payment on its own behalf. If such Member fails, or is not otherwise able, to make such payment on its own behalf and the Company, Member or such Affiliate makes any such payment on behalf of the Member, such Member shall reimburse, indemnify and hold harmless the Company, the Manager, the other Members, each such Affiliate and pay all judgments each of their respective officers, directors, employees, stockholders, members and claims against any Manager Indemnified Party, agents (each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 117.11(e)) for the entire amount of such payment (including interest and penalties thereon and expenses related thereto). Distributions or payments to which a Member is otherwise entitled to pursuant to Article V or Article XI hereof may be offset against such Member’s obligation to reimburse and indemnify a party pursuant to this Section 7.11(e). A Member’s obligation under this Section 7.11(e) shall bear interest commencing with the date such obligation arises, from at an annual rate equal to the lesser of the maximum amount permitted by law and the per annum rate of interest reported on the date such obligation arises by The Wall Street Journal as the six (6) month London Interbank Offered Rate plus five-hundred (500) basis points.
(f) The Company and the Manager shall maintain insurance in customary amounts and against any Loss incurred customary risks as reasonably determined from time to time by them the Manager.
(g) The indemnities provided hereunder shall survive termination of the Company and this Agreement. The provisions of this Section 7.11 for any act or omission taken or suffered the indemnification of Persons other than Members may be relied upon by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon such Persons and in accordance with the opinion or advice of experts, including of legal counsel may be enforced as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that if such Persons were selected parties hereto and, to this extent, the Manager shall be deemed to hold the benefit of such indemnity on behalf of each Indemnified Party and monitored with shall use its reasonable care) endeavors to assist such Person in connection with, bringing proceedings in respect of or arising from a claim under this Section 7.11.
(h) Neither the Manager nor any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there Member shall be no indemnification liable to the Company or to another Member for any consequential or punitive damages.
(i) any act or omission Notwithstanding the foregoing, no Affiliate of a Manager Indemnified Party that constitutes a Bad Act or Member (ii) any indemnification obligation including of the Manager Indemnified Parties pursuant to Section 5.3(b)(ivManager, in such capacity) nor any of the Parent LP Agreement respective current or the Losses related thereto.
former members, shareholders (c) To the fullest extent permitted or other Equity Security holders), officers, directors or employees of a Member or of an Affiliate of a Member shall be personally liable for any payments due from a Member hereunder or any obligations to be performed by applicable Lawa Member hereunder, Asset Manager shall and does hereby agree except as expressly provided herein or in any other agreement to indemnify and hold harmless and pay all judgments and claims against Parent, which such Person is a party. The sole recourse of the Company or other Members for any payments due from a Member hereunder or any obligations to be performed by a Member hereunder shall be against such Member and its Subsidiaries assets and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and not against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationother Person; provided, however, that (x) nothing in this Section 7.11(i) shall limit or otherwise prejudice in any way the failure right of the Company or other Members to so notify proceed against any Person with respect to the Indemnitor will not relieve the Indemnitor from enforcement of such Person’s obligations under any liability agreement to which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably requesta party, and (iiiy) be entitled to participate in (but not control) the defense of any recourse against a Person for such action, with its Person’s own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which fraud or criminal or willful misconduct shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided limited by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity7.11(i).
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Eif Neptune, LLC)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, Neither the “Investment Manager Indemnified Parties”) will not be liable to Parent, the Company nor any Affiliate or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers associates, directors, officers, employees or partners agents of Parent, the Company Investment Manager or any of their respective Subsidiaries for any acts or omissions by any Manager Affiliate (each, an “Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Partiescollectively, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary liable to the Client for any act or omission based upon honest errors of this Agreement solely for purposes judgment, negligence or other fault in connection with the business or affairs of this Section 11. For the avoidance of doubtClient, so long as the action or failure to act does not constitute Disabling Conduct (including, without limitation, for purposes the actions of this Section 11(c), any Loss in respect of or arising from an act sub-advisor selected by the Asset Investment Manager to manage the account containing the Aggregate Assets, except where the Indemnified Party acted with Disabling Conduct in its capacity as a fiduciary under the Employee Retirement Income Security Act selection and engagement of 1974, as amended, and the regulations thereunder shall not constitute a Bad Actsuch sub-advisor).
(db) The Client shall indemnify each Indemnified Party will promptly notify to the party against whom indemnity is claimed fullest extent permitted by Law and to hold each Indemnified Party harmless from and with respect to all (the “Indemnitor”a) of any claim for which it seeks indemnification; providedfees, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor costs and expenses (including attorneys’ fees and disbursements) incurred in connection with or resulting from any liability which it may have hereunderclaim, except action or demand against the Indemnified Parties that arise out of or in any way relate to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense Client, its properties, business or affairs and settlement of (b) any losses or damages resulting from any such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and action or demand, including amounts paid in settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice or compromise of the claim. In such case, the Indemnified Party will action or demand, except that this indemnification shall not settle or compromise such claim, and the Indemnitor will not be liable for apply to any such settlement madefees, without its prior written consent. If the Indemnitor is entitled tocosts, and doesexpenses, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will losses or damages (i“Losses”) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense arising out of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the an Indemnified Party’s prior written consentDisabling Conduct. Further, which the Client’s obligations under this paragraph 12 shall not be unreasonably withheldapply (x) with respect to Losses arising out of any unsuccessful claim, delayed action or conditioned.
demand (eexcluding counterclaims) Expenses reasonably incurred by an any Indemnified Party in defense against the Client, or settlement (y) with respect to Losses arising out of any claim claim, action or demand arising out of or related to disputes among the Indemnified Parties. The Client shall advance to any Indemnified Party costs and expenses (including attorneys’ fees and disbursements) that may be are deemed reasonable by the Investment Manager, and that are incurred in connection with any action or proceeding subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor hereunder, prior to the final disposition thereof of such action or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that if it shall be is ultimately determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunderby the Client. U.S. federal securities laws, under certain circumstances, impose liability even on Persons that act in good faith, and the Client is not waiving any rights it may have to the extent that such liability may not be waived, modified or eliminated under applicable Law but shall be construed so as to effectuate the provisions of this paragraph 12 to the fullest extent permitted by Law.
(fc) If a claim for indemnification For purposes of this paragraph12, acts or payment failures to act undertaken upon the advice of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, counsel shall be entitled deemed to be paid actions in good faith, within the expenses scope of prosecuting such claimauthority and in the best interests of the Client.
(gd) The indemnification provided by obligations of TP Re Bermuda and TP Re USA under this Section 11 paragraph 12 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, several and shall continue as to an Indemnified Party who has ceased to serve in such capacitynot joint.
Appears in 1 contract
Sources: Collateral Assets Investment Management Agreement (Third Point Reinsurance Ltd.)
Exculpation and Indemnification. (a) The Asset ManagerNone of the Member, any of its Affiliates and their respective Constituent Membersmembers, managers, employees, managersagents, consultants and officers, directors, any of their respective affiliates, consultants, employees or agents (collectivelyor any Manager, the “Manager Indemnified Parties”) will not be liable to Parentemployee, the Company agent, or officer or any of their respective Subsidiariesaffiliates, the Parent Boardconsultants, the General Partner, the Company Board employees or the members, managers or partners of Parent, agents (each an “Indemnified Party”) shall be liable to the Company or any of their respective Subsidiaries other person or entity who has an interest in the Company for any acts loss, damage or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss claim incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such loss, damage or claim incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any loss, damage or claim incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any loss, damage or arising from any claim incurred by such Indemnified Party by reason of gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 19 shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) Member shall have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions no personal liability on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedaccount thereof.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Exculpation and Indemnification. Neither the General Partner nor any of its agents and employees (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board Partnership or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries other Partners for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by the General Partner or any such other person except if such act or omission was the result of them such person’s gross negligence, willful misconduct or fraud. Each of the Indemnified Parties shall be indemnified and held harmless by the Partnership from any and all losses, expenses, claims or liabilities of any nature whatsoever incurred by such Indemnified Party (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or in good faith reliance upon and in accordance connection with any act or omission performed or omitted by such Indemnified Party except if such act or omission was the opinion result of such Indemnified Party’s gross negligence, willful misconduct or fraud. The Indemnified Parties shall be entitled to rely on the advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accountingor public accountants, or of investment bankers any other person or appraisers as entity believed by the Indemnified Parties to matters of valuation; provided, that such Persons were selected be knowledgeable about the matter at issue and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of in reliance on such advice shall in no event subject the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding to liability to the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11Partnership or any other Partner, provided that any such counsel, public accountant or other person or entity was selected with reasonable care. For the avoidance of doubtFurthermore, for purposes of this Section 11(c)4.6, any Loss no Indemnified Party shall be deemed to have acted in respect a manner constituting gross negligence, willful misconduct or fraud unless so found following a final adjudication by a court of or arising from an act competent jurisdiction and the exhaustion by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) Parties of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it rights they may have hereunder, except to the extent appeal such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedfinding.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Limited Partnership Agreement (Cole Kenneth Productions Inc)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will not No Member or officer shall be liable to Parentthe Company, or any other person or entity who has or had an interest in the Company, including the Forming Person (each, an "Indemnified Party"), for any loss, damage or claim incurred by the Company or any by reason of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no indemnification liable for (i) any act such loss, damage or omission claim incurred by the Company by reason of a Manager such Indemnified Party that constitutes a Bad Act Party's fraud or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) willful misconduct. To the fullest extent permitted by applicable Lawlaw, Asset Manager an Indemnified Party shall and does hereby agree be entitled to indemnify and hold harmless and pay all judgments and claims against Parentindemnification from the Company for any loss, damage or claim incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employeesexcept that no Indemnified Party shall be entitled to be indemnified for any such loss, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss damage or claim incurred by them in respect of or arising from any acts or omissions by any Manager such Indemnified Party pursuant to by reason of such Indemnified Party's fraud or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationwillful misconduct; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity or advancement of expenses under this Section 20 shall be provided out of and to the extent such failure actually prejudices the Indemnitorof Company assets only, and no Member shall have personal liability on account thereof. The Indemnitor shall have the right to assume the defense costs and settlement expenses of such claim; provided, that the Indemnitor notifies the any Indemnified Party of its election to assume such defense and settlement within thirty (30) days after reasonably incurred in defending any threatened or pending action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Indemnified Party gives the Indemnitor notice Company in advance of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense final disposition of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed suit or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof proceeding upon receipt of an undertaking by or on behalf of such the Indemnified Party to repay such amount to the extent that if it shall ultimately be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided Company as authorized by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity20.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Euro Currency Trust)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, Neither the “Investment Manager Indemnified Parties”) will not be liable to Parent, the Company nor any Affiliate or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers associates, directors, officers, employees or partners agents of Parent, the Company Investment Manager or any of their respective Subsidiaries for any acts or omissions by any Manager Affiliate (each, an “Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Partiescollectively, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary liable to the Client for any act or omission based upon honest errors of this Agreement solely for purposes judgment, negligence or other fault in connection with the business or affairs of this Section 11. For the avoidance of doubtClient, so long as the action or failure to act does not constitute Disabling Conduct (including, without limitation, for purposes the actions of this Section 11(c), any Loss in respect of or arising from an act sub-advisor selected by the Asset Investment Manager to manage the account containing the Collateral Assets, except where the Indemnified Party acted with Disabling Conduct in its capacity as a fiduciary under the Employee Retirement Income Security Act selection and engagement of 1974, as amended, and the regulations thereunder shall not constitute a Bad Actsuch sub-advisor).
(db) The Client shall indemnify each Indemnified Party will promptly notify to the party against whom indemnity is claimed fullest extent permitted by Law and to hold each Indemnified Party harmless from and with respect to all (the “Indemnitor”a) of any claim for which it seeks indemnification; providedfees, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor costs and expenses (including attorneys’ fees and disbursements) incurred in connection with or resulting from any liability which it may have hereunderclaim, except action or demand against the Indemnified Parties that arise out of or in any way relate to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense Client, its properties, business or affairs and settlement of (b) any losses or damages resulting from any such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and action or demand, including amounts paid in settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice or compromise of the claim. In such case, the Indemnified Party will action or demand, except that this indemnification shall not settle or compromise such claim, and the Indemnitor will not be liable for apply to any such settlement madefees, without its prior written consent. If the Indemnitor is entitled tocosts, and doesexpenses, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will losses or damages (i“Losses”) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense arising out of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the an Indemnified Party’s prior written consentDisabling Conduct. Further, which the Client’s obligations under this paragraph 12 shall not be unreasonably withheldapply (x) with respect to Losses arising out of any unsuccessful claim, delayed action or conditioned.
demand (eexcluding counterclaims) Expenses reasonably incurred by an any Indemnified Party in defense against the Client, or settlement (y) with respect to Losses arising out of any claim claim, action or demand arising out of or related to disputes among the Indemnified Parties. The Client shall advance to any Indemnified Party costs and expenses (including attorneys’ fees and disbursements) that may be are deemed reasonable by the Investment Manager, and that are incurred in connection with any action or proceeding subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor hereunder, prior to the final disposition thereof of such action or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that if it shall be is ultimately determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunderby the Client. U.S. federal securities laws, under certain circumstances, impose liability even on Persons that act in good faith, and the Client is not waiving any rights it may have to the extent that such liability may not be waived, modified or eliminated under applicable Law but shall be construed so as to effectuate the provisions of this paragraph 12 to the fullest extent permitted by Law.
(fc) If a claim for indemnification For purposes of this paragraph 12, acts or payment failures to act undertaken upon the advice of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, counsel shall be entitled deemed to be paid actions in good faith, within the expenses scope of prosecuting such claimauthority and in the best interests of the Client.
(gd) The indemnification provided by obligations of TP Re Bermuda and TP Re USA under this Section 11 paragraph 12 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, several and shall continue as to an Indemnified Party who has ceased to serve in such capacitynot joint.
Appears in 1 contract
Sources: Collateral Assets Investment Management Agreement (Third Point Reinsurance Ltd.)
Exculpation and Indemnification. (a) The Asset ManagerCompany shall indemnify to the fullest extent permitted by law the Managing Member from and against all costs and expenses (including attorneys' fees and disbursements), its Affiliates judgments, fines, settlements, claims and their respective Constituent Membersother liabilities ("Claims") incurred by or imposed upon the Managing Member in connection with, employeesor resulting from, managersinvestigating, consultants and agents preparing or defending any action, suit or proceeding, whether civil, criminal, administrative, investigative, legislative or otherwise (collectivelyor any appeal therein), to which the Managing Member may be made a party or become otherwise involved or with which the Managing Member may be threatened, in each case by reason of, or in connection with, the “Manager Indemnified Parties”) will not be liable to Parent, Managing Member's being or having been associated with the Company or by reason of any action or alleged action, omission or alleged omission by the Managing Member in any such capacity, to the extent that the Managing Member is not adjudged by a court of their respective Subsidiariescompetent jurisdiction to have engaged in willful misconduct, the Parent Board, the General Partner, the Company Board fraud or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Actgross negligence.
(b) To The personal liability of the Managing Member is hereby eliminated to the fullest extent permitted by applicable Lawthe Act, as the same may be amended and supplemented. The Managing Member shall not be personally liable to the Company or its Members for monetary damages for breach of fiduciary duty (which has been determined by a court of competent jurisdiction) as the Managing Member, except as to liability to the extent such exemption from liability or limitation thereof is not permitted under the Act, as the same exists or may hereafter be amended. If the Act hereafter is amended to further eliminate or limit the liability of the Managing Member, then the Managing Member, in addition to the circumstances in which the Managing Member is not personally liable as set forth in the preceding sentence, shall not be liable to the fullest extent permitted by the Act. In furtherance of, and does hereby agree without limiting the generality of the foregoing, the Managing Member shall not be (i) personally liable for the debts, obligations or liabilities of the Company, including any such debts, obligations or liabilities arising under a judgment, decree or order of a court; (ii) obligated to indemnify and hold harmless and pay cure any deficit in any Capital Account; (iii) required to return all judgments and claims against or any Manager Indemnified Party, each portion of which shall be a third-party beneficiary of this Agreement solely for purposes any Capital Contribution; or (iv) required to lend any funds to the Company. Any repeal or modification of this Section 11, from and against 6.3(b) by the Members shall not adversely affect any Loss incurred by them for any act right or omission taken protection of the Managing Member existing at the time of such repeal or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance modification with the opinion or advice of experts, including of legal counsel as respect to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of occurring prior to such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act repeal or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related theretomodification.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parentlaw, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, shall pay the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss expenses incurred by them the Managing Member in respect of investigating, preparing or arising from any acts defending a civil or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such criminal action, with its own counsel and at its own expense. In additionsuit or proceeding, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent in advance of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof thereof, upon receipt of an undertaking by or on behalf of such Indemnified Party the Managing Member to repay such amount to the extent if there is an adjudication or determination by a court of competent jurisdiction that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party he is not entitled to be indemnified hereunderindemnification as provided herein.
(fd) If a claim for indemnification or payment None of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice the provisions of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, this Section 6.3 shall be entitled deemed to be paid create or grant any rights in favor of any third party, including, without limitation, any right of subrogation in favor of any insurer or surety. The rights of indemnification granted hereunder shall survive the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreementdissolution, pursuant to any action winding up and termination of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Enstar Group Inc)
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent None of the Members, employees, managers, consultants and agents Managers or Officers (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parentthe LLC for any loss, the Company damage or claim (a “Loss”) (or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board expenses or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
costs associated therewith (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the LLC and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any Loss or Costs incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant LLC and in a manner reasonably believed to Section 5.3(b)(iv) be within the scope of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted authority conferred on such Indemnified Party by applicable Lawthis Agreement, Asset Manager except that no Indemnified Party shall and does hereby agree be entitled to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them be indemnified in respect of any Loss or arising from any Costs incurred by such Indemnified Party by reason of such Indemnified Party’s gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 6.03 shall be provided out of and to the extent such failure actually prejudices the Indemnitorof LLC assets only, and no Member, Manager or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such an Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full connection with any Loss within twenty (20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from to time; provided such statement provides reasonable documentary evidence of such Costs and provides a written notice of claim therefor has been received undertaking by the Indemnitor, Indemnified Party to repay any and all advanced Costs in the claimant may file suit event such Indemnified Party is ultimately determined to recover the unpaid amount of such claim and, if successful in whole or in part, shall not be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Exculpation and Indemnification. None of Kohlberg or any of its affiliates (aincluding Kohlberg affiliated funds) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager Indemnified Parties”) will not be liable to Parent, the Company or any of their respective Subsidiariesprincipals, officers, directors, stockholders, agents or employees; any direct or indirect general partner, managing member and/or controlling shareholder of any Kohlberg affiliated fund; any persons designated by Kohlberg, any Kohlberg affiliate or any Kohlberg affiliated fund, to serve as a director, officer, board observer, partner, trustee, fiduciary, manager, employee, consultant or advisor, or functional or foreign equivalent of the foregoing, to any of the Amendia Companies (each, an “Indemnified Party”) shall have any liability to the Amendia Companies for any services provided pursuant to this Agreement, except as may result from such Indemnified Party’s gross negligence or willful misconduct, provided however that notwithstanding the foregoing each such Indemnified Party shall be exculpated from liability to the Amendia Companies to the fullest extent permitted under Delaware law. The Amendia Companies, jointly and severally, hereby agree to indemnify each Indemnified Party from and against all losses, liabilities, damages, deficiencies, demands, claims, actions, judgments or causes of action, assessments, costs or expenses (including, without limitation, interest, penalties and reasonable fees, expenses and disbursements of attorneys, experts, personnel and consultants incurred by the Indemnified Party in any action or proceeding between any of the Amendia Companies and the Indemnified Party or between the Indemnified Party and any third party, or otherwise) based upon, arising out of, or in any way relating to (i) this Agreement, the Parent BoardAcquisition, any transaction to which any of the General PartnerAmendia Companies is a party, or any other circumstances with respect to the Company Board Amendia Companies or (ii) operations of, or services provided by Kohlberg to the membersAmendia Companies from time to time (including but not limited to any indemnification obligations assumed or incurred by any Indemnified Party to or on behalf of the Amendia Companies, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts accountants or omissions by any Manager Indemnified Partyother representatives, pursuant to agents or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Actaffiliates).
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Management Agreement (Spinal Elements Holdings, Inc.)
Exculpation and Indemnification. Neither the Member nor any Director or Officer (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss claim incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such loss, damage or claim incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any loss, damage or claim incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any loss, damage or arising from any claim incurred by such Indemnified Party by reason of gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 17 shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will Member shall have no personal liability on account thereof. Any repeal or modification of this Section 17 shall not be liable for impair or otherwise affect any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice rights or obligations then existing with respect to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed any state of facts then or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in theretofore existing or any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed suit or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense proceeding theretofore or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful thereafter brought based in whole or in part, part upon any such state of facts. This Section 17 shall be liberally construed in favor of indemnification and the payment of expenses incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, in advance of its final disposition. There shall be a rebuttable presumption that a claimant under this Section 17 is entitled to be paid such indemnification and the expenses Company shall bear the burden of prosecuting such claim.
(g) The indemnification provided proving by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action a preponderance of the Company, as a matter of Law or otherwise, and shall continue as evidence that such claimant is not so entitled to an Indemnified Party who has ceased to serve in such capacityindemnification.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Global Engine Manufacturing Alliance LLC)
Exculpation and Indemnification. of the Members and the Manager.
(a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Manager No Indemnified Parties”) will not Party shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss claim incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by such Indemnified Party in connection with any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accountingmatter arising from, or of investment bankers related to, or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of with this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of Company's business or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationaffairs; provided, however, that the failure to so notify foregoing shall not eliminate or limit the Indemnitor will not relieve the Indemnitor from liability of any liability which it may have hereunder, except Indemnified Party if a judgment or other final adjudication adverse to the Indemnified Party establishes that the Indemnified Party's acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that the Indemnified Party personally gained a financial profit or other advantage to which the Indemnified Party was not legally entitled.
(b) The Company shall, to the fullest extent such failure actually prejudices permitted by the Indemnitor. The Indemnitor shall have Act, indemnify and hold harmless, and advance expenses to, each Indemnified Party against any losses, claims, damages or liabilities to which the right to assume Indemnified Party may become subject in connection with any matter arising from, related to, or in connection with, this Agreement or the defense and settlement of such claimCompany's business or affairs; provided, however, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that no indemnification may be subject made to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such any Indemnified Party to repay such amount if a judgment or other final adjudication adverse to the extent Indemnified Party establishes (i) that it the Indemnified Party's acts or omissions giving rise to such losses, claims, damages or liabilities were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated or (ii) that the Indemnified Party personally gained a financial profit or other advantage to which the Indemnified Party was not legally entitled; provided, further, that such indemnification shall be determined upon final decision, judgment or order (whether or not subject to appealthe terms of, and shall be subordinate to the obligations (if any) that such Indemnified Party payable under, the agreements referred to in Section 2.5 to which the Company is not entitled to be indemnified hereundera party.
(fc) If a claim for indemnification or payment of reasonable expenses hereunder is not paid Notwithstanding anything else contained in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitorthis Agreement, the claimant may file suit to recover indemnity obligations of the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.Company under paragraph (b) above shall:
(gi) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party liability that the Company may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.otherwise have;
Appears in 1 contract
Sources: Limited Liability Company Agreement (Copelco Capital Funding LLC 99-1)
Exculpation and Indemnification. (a) The Asset Manager, Neither the Member nor any of its Affiliates and their respective Constituent Membersshareholders, employees, managersagents, consultants and agents officers, directors, any of their respective affiliates, consultants, employees or agents, any Manager or any Officer (collectivelyeach, the an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss claim incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no indemnification liable for (i) any act such loss, damage or omission claim incurred by reason of a Manager such Indemnified Party that constitutes a Bad Act Party’s wanton or (ii) any indemnification obligation reckless misconduct, as construed under Section 275.170 of the Manager Indemnified Parties pursuant Act, as it may be amended or superceded from time to time (“Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) 275.170”). To the fullest extent permitted by applicable Lawlaw, Asset Manager an Indemnified Party shall and does hereby agree be entitled to indemnify and hold harmless and pay all judgments and claims against Parentindemnification from the Company for any loss, damage or claim incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any loss, damage or arising from any claim incurred by such Indemnified Party by reason of wanton or reckless misconduct (as construed under Section 275.170) with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 22 shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) Member shall have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions no personal liability on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedaccount thereof.
(eb) Expenses reasonably incurred by an Indemnified Party Officer or Manager in defense defending or settlement of any in preparation for a civil, criminal, administrative or investigative action, suit or proceeding, arbitration, mediation or claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(cin respect thereof (collectively, “Actions”) shall be advanced paid by the Indemnitor prior to Company in advance of the final disposition thereof of such Action upon receipt of an undertaking by or on behalf of such Indemnified Party the Manager or Officer to repay such amount to the extent that if it shall ultimately be determined upon final decision, judgment that he or order (whether or not subject to appeal) that such Indemnified Party she is not entitled to be indemnified hereunderby the Company as authorized in this Section 22. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate. As used in this Section 22, “expenses” shall mean any direct out-of-pocket costs reasonably related to such Action, including, without limitation, attorneys’ fees, fees of consultants, advisors and expert witnesses, and related charges.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(gc) The indemnification and advancement of expenses provided by by, or granted pursuant to, the other sections of this Section 11 22 shall not be in addition to deemed exclusive of any other rights to which an Indemnified Party those seeking indemnification or advancement of expenses may be entitled under any agreementagreement among or between the parties, pursuant to any action of the Company, as a matter of Law available insurance policy or otherwise, and shall continue both as to an Indemnified Party who has ceased action in his official capacity and as to serve action in another capacity while holding such capacityoffice.
Appears in 1 contract
Exculpation and Indemnification. None of the Member, any of its employees, agents, officers, directors, Board of Regents (athe “Board of Regents”) The Asset Managerand members thereof, members of its Affiliates advisory bodies and councils, any of their respective Constituent Membersaffiliates, employeesconsultants, managers, consultants and employees or agents or any Officer (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
claim (bincluding reasonable legal fees and costs) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such loss, damage or claim incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any loss, damage or claim incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any loss, damage or arising from any claim incurred by such Indemnified Party by reason of gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 19 shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) Member shall have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions no personal liability on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditionedaccount thereof.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.] [TBD]
Appears in 1 contract
Sources: Limited Liability Company Agreement
Exculpation and Indemnification. Section 22(b) through Section 22(o) shall remain in effect until and shall terminate on the sixth (a6th) The Asset Manageranniversary of this Agreement and are solely for the benefit of the directors, officers, employees and agents of the Company on or prior to the date hereof.
a. Neither the Member nor any of its Affiliates and their respective Constituent Membersmembers, employees, managersagents, consultants and officers, directors, any of their respective affiliates, consultants, employees or agents or any Officer (collectively, the each an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other person or entity who has an interest in the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries for any acts loss, damage, claim or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
expense (bincluding attorneys’ fees) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there shall be no indemnification for (i) any act or omission of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) . To the fullest extent permitted by applicable Lawlaw, Asset Manager an Indemnified Party shall be entitled to indemnification and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parentadvancement of expenses from the Company for any loss, damage, claim or expense (including attorneys’ fees) incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager authority conferred on such Indemnified Party pursuant to or in accordance with by this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationAgreement; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 22(a) shall be provided out of and to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claimCompany assets only, and the Indemnitor will Member shall have no personal liability on account thereof.
b. To the fullest extent permitted by law as it currently exists and to such greater extent as applicable law hereafter may permit, but subject to the limitations expressly provided in this Agreement, the Company shall indemnify any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or other enterprise (including an employee benefit plan), association, government agency or political subdivision thereof or other entity (each, a “Person”) who was or is a party or is threatened to be made a party to, or otherwise requires representation of counsel in connection with, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that such Person is or was a director of the Company (“Director”) or Officer, is or was serving as a tax matters partner of the Company or, at the request of the Company, as a director, officer, tax matters partner, employee, partner, manager, fiduciary or trustee of any of the Company or any Subsidiary thereof (“Company Group”) or any other Person (each an “Indemnitee”) or by reason of any action alleged to have been taken or omitted in such capacity, against losses, expenses (including attorneys’ fees), judgments, fines, damages, penalties, interest, liabilities and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such Person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the Person’s conduct was unlawful.
c. To the fullest extent permitted by law, but subject to the limitations expressly provided in this Agreement, the Company shall indemnify any Person who was or is a party or is threatened to be made a party to, or otherwise requires representation of counsel in connection with, any threatened, pending or completed action, suit or proceeding, by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Person was serving as an Indemnitee, or by reason of any action alleged to have been taken or omitted in such capacity, against losses, expenses (including attorneys’ fees), judgments, fines, damages, penalties, interest, liabilities and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person shall have been adjudged to be liable to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
d. To the extent an Indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 22(b) or Section 22(c), or in the defense of any claim, issue or matter therein, such settlement Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection therewith.
e. Any indemnification under Section 22(b) or Section 22(c) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Person has met the applicable standard of conduct set forth in such section. Such determination shall be made, without its prior written consent. If with respect to a Person who is a Director or Officer at the Indemnitor is entitled totime of such determination, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have by the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned)Member, (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which by a committee designated by the Indemnitor may reasonably requestMember, and or (iii) if the Member so directs, by independent legal counsel in an opinion of Counsel.
f. Expenses (including attorneys’ fees) incurred by an Indemnitee in defending any action, suit or proceeding referred to in Section 22(b) or Section 22(c) shall be entitled to participate paid by the Company in (but not control) advance of the defense final disposition of any such action, with its own counsel suit or proceeding and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement advance of any claim determination that may such Indemnitee is not entitled to be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof indemnified, upon receipt of an undertaking by or on behalf of such Indemnified Party Indemnitee to repay such amount to the extent that if it shall ultimately be determined upon by final decision, judgment or order judicial decision from which there is no further right to appeal (whether or not subject to appeala “Final Adjudication”) that such Indemnified Party Person is not entitled to be indemnified hereunderby the Company as authorized in Section 22(b) through Section 22(o).
(fg. The indemnification, advancement of expenses and other provisions of Section 22(b) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20through Section 22(o) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party Indemnitee may be entitled under any agreement, pursuant to any action vote of the CompanyMember, as a matter of Law law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnified Party Indemnitee who has ceased to serve in such capacitycapacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
h. The Company may purchase and maintain insurance, on behalf of its Directors and Officers, and such other Persons as the Member shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Company’s activities or such Person’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
i. For purposes of the definition of Indemnitee in Section 22(b), the Company shall be deemed to have requested a Person to serve as fiduciary of an employee benefit plan whenever the performance by such Person of his duties to the Company also imposes duties on, or otherwise involves services by, such Person to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 22(b); and action taken or omitted by such Person with respect to any employee benefit plan in the performance of such Person’s duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in, or not opposed to, the best interests of the Company.
j. Any indemnification pursuant to Section 22(b) through Section 22(o) shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
k. An Indemnitee shall not be denied indemnification in whole or in part under Section 22(b) through Section 22(o) because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
l. If a claim under Section 22(b) through Section 22(o) is not paid in full by the Company within 60 days after a written claim has been received by the Company, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall be entitled to be paid also the reasonable expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in this Agreement. Neither the failure of the Company (including independent legal counsel or the Member) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in this Agreement, nor an actual determination by the Company (including independent legal counsel or the Member) that the Indemnitee has not met the applicable standard of conduct shall create a presumption that the Indemnitee has not met the applicable standard of conduct, or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified or to such advancement of expenses, under Section 22(b) through Section 22(o) or otherwise shall be on the Company.
m. The Company may indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not an action by or in the right of the Company) by reason of the fact that the Person is or was an employee (other than an Officer) or agent of the Company, or, while serving as an employee (other than an Officer) or agent of the Company or is or was serving at the request of the Company as a director, officer, employee, partner, fiduciary, trustee or agent of another member of the Company Group or another Person to the extent (i) permitted by the laws of the State of Delaware as from time to time in effect, and (ii) authorized by the Member. The Company may, to the extent permitted by Delaware law and authorized by the Member, pay expenses (including attorneys’ fees) reasonably incurred by an such employee or agent in defending any civil, criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon such terms and conditions as the Member determines. The provisions of this Section 22(m) shall not constitute a contract right for any such employee or agent.
n. The indemnification, advancement of expenses and other provisions of Section 22(b) through Section 22(o) are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
o. Except to the extent otherwise provided in Section 22(m), the right to be indemnified and to receive advancement of expenses in Section 22(b) through Section 22(o) shall be a contract right. No amendment, modification or repeal of Section 22(b) through Section 22(o) or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of Section 22(b) through Section 22(o) as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Copano Energy, L.L.C.)
Exculpation and Indemnification. (a) The Asset ManagerNeither the Investment Manager nor any of its partners, its Affiliates and their respective Constituent Membersaffiliates, directors, officers, employees, managersshareholders, consultants members and other agents (collectivelyeach, the “Manager an "Indemnified Parties”) will not Party"), shall be liable to Parentthe Fund or to the Members for monetary damages for any losses, claims, damages or liabilities ("Damages") arising from any act performed or omitted by such parties arising out of or in connection with the Company or any performance by Investment Manager of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board its services under this Agreement or the membersFund's business or affairs, managers except to the extent that any such Damages are primarily attributable to the gross negligence or partners willful misconduct of Parent, the Company or any of their respective Subsidiaries for any acts or omissions by any Manager such Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b1) To The Fund shall, to the fullest extent permitted by applicable Lawlaw, Company shall and does hereby agree to indemnify indemnify, defend and hold harmless and pay all judgments and claims the Indemnified Parties against any Damages to which the Indemnified Party may become subject in connection with any matter arising out of or in connection with the performance by Investment Manager of its services under this 914393.10 5 Agreement or the Fund's business or affairs, except, with respect to any Indemnified Party to the extent that any such Damages are primarily attributable to the gross negligence or willful misconduct of such Indemnified Party. If the Indemnified Party becomes involved in any capacity in any action, proceeding or investigation in connection with any matter arising out of or in connection with the performance by Investment Manager of its services under this Agreement or the Fund's business or affairs, the Fund shall reimburse the Indemnified Party for its reasonable legal and other expenses (including the cost of any investigation and preparation) as they are incurred in connection therewith, provided, however, that the Indemnified Party shall promptly repay to the Fund the amount of any such reimbursed expenses paid to it if it shall ultimately be finally determined that the Indemnified Party was not entitled to be indemnified by the Fund in connection with such action, proceeding or investigation. If for any reason (other than by reason of the exclusions from indemnification hereinabove set forth) the foregoing indemnification is unavailable to the Indemnified Party, each or insufficient to hold it harmless, then the Fund shall contribute to the amount paid or payable by the Indemnified Party as a result of which shall be a third-party beneficiary of this Agreement solely for purposes such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the Fund on the one hand and the Indemnified Party on the other hand or, if such allocation is not permitted by applicable law, to reflect not only the relative benefits referred to above but also any other relevant equitable considerations.
(2) The provisions of this Section 113.1(b) shall survive for a period of three years from the date of dissolution of the Fund; provided however, from and against that if at the end of such period there are any Loss incurred by them for any act actions, proceedings or omission taken or suffered by each Manager investigations then pending, the Indemnified Party shall notify the Members (including which notice shall include a brief description of each such action, proceeding or investigation and the liabilities asserted therein) and the provisions of this Section 3.1(b) shall survive with respect to each such action, proceeding or investigation set forth in such notice (or any act related action, proceeding or omission performed investigation based upon the same or omitted by any of them in good faith reliance upon similar claim) until the date that such action, proceeding or investigation is finally resolved; and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, further, that such Persons were selected and monitored with reasonable carethe obligations of the Fund under this Section 3.1(b) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of this Agreement, except that there shall be no indemnification for (i) any act or omission satisfied solely out of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation Fund assets, subject to the right of the Manager Indemnified Parties liquidator of the Fund to establish reserves, pursuant to the Fund Operating Agreement for contingent obligations under this Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto3.1(b).
(c) To No Member of the fullest extent permitted by applicable Law, Asset Manager Fund shall and does hereby agree have any obligation to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each Fund or any other Member of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against Fund to bring or join in any Loss incurred by them action in respect defense of or arising from any acts or omissions by any Manager an Indemnified Party pursuant to Section 3.1 (a) or (b). Nothing contained in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) Section 3.1 shall be a third-party beneficiary construed as any waiver of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of insurance claims or arising from an act recoveries by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad ActFund or an Indemnified Party.
(d) The remedies of an Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; providedunder this Article III shall be non- exclusive and, howeverwithout duplication, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent each such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in may pursue any other manner remedy provided in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed law or conditionedequity.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement The provisions of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) this Article III shall be advanced by the Indemnitor prior inure to the final disposition thereof upon receipt benefit of an undertaking by or on behalf the Indemnified Parties, and any successors, assigns, heirs and personal representatives of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunderParties.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.
Appears in 1 contract
Sources: Investment Management Agreement (Capital Trust Inc)
Exculpation and Indemnification. Except to the extent otherwise required by applicable law, none of the General Partner or any director, officer, partner, shareholder, Affiliate, employee or agent of any member of the General Partner (a) The Asset Manager, its Affiliates all of the foregoing persons and their respective Constituent Members, employees, managers, consultants and agents (collectively, the entities being referred to collectively as “Manager Indemnified Parties” and individually as an “Indemnified Party”) will not shall be liable to Parent, the Company Fund or any of their respective Subsidiaries, the Parent Board, the General Partner, the Company Board or the members, managers or partners of Parent, the Company or any of their respective Subsidiaries Partner for any acts or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(bi) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager such Indemnified Party or (including ii) any losses due to the negligence of any employees, brokers or other agents of the Fund (whether or not such persons are directly employed by any Indemnified Party), unless such Indemnified Party’s act or omission performed has been determined, by a court having appropriate jurisdiction in a decision that is not subject to appeal, to constitute fraud, wilful misfeasance or omitted negligence of such Indemnified Party. To the maximum extent permitted by applicable law, each Indemnified Party shall be fully protected, indemnified and held harmless by the Fund against all liabilities, claims, damages and losses (including amounts paid in respect of judgments, fines, penalties or settlement of litigation, and legal fees and expenses reasonably incurred in connection with any pending or threatened litigation or proceeding) arising out of, related to or in connection with the Fund’s business or affairs, unless the act or omission giving rise to the claim for indemnification has been determined, by a court having appropriate jurisdiction in a decision that is not subject to appeal, to have been caused by such Indemnified Party’s fraud, wilful misfeasance, negligence or the knowing material violation of applicable laws, material breach of this Agreement, any fiduciary duty owed to the Fund by this Agreement, or any fiduciary duty owed to the Fund by the Indemnified Party. No Indemnified Party shall be entitled to indemnification by the Fund to the extent that such loss arises in respect of any economic losses incurred by any Indemnified Party as a result of them the ownership of Units in good faith the Fund or the ownership of an interest in any assets, or in respect of any expenses of the Fund that the Indemnified Party has agreed to bear. The Fund may advance expenses, including legal fees and disbursements, for which any Indemnified Party would be entitled by this Agreement to be indemnified upon receipt of an unsecured undertaking by such Indemnified Party to repay such advances if it is ultimately determined, by a court having appropriate jurisdiction in a decision that is not subject to appeal, that indemnification for such expenses is not permitted by law or authorized by this Agreement. Each Indemnified Party may consult with outside legal counsel selected by the Fund, and any action or omission taken or suffered in reliance upon and in accordance with the opinion or advice of expertssuch counsel shall be conclusively presumed for purposes of this Agreement not to have constituted fraud, including wilful misfeasance or negligence. Unless there is a specific finding of legal counsel as to matters fraud, wilful misfeasance or negligence (or where such a finding is an essential element of lawa judgment or order), the termination of any action, suit or proceeding by judgment, order or settlement, shall not, of accountants as itself, be deemed to matters constitute for the purposes of accounting, or of investment bankers or appraisers as to matters of valuation; provided, this Section 6 a determination that such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager the Indemnified Party made in question acted negligently or engaged in fraud or wilful misfeasance. A person or entity shall continue to be exculpated and shall remain entitled to the performance indemnification provided in this Section 6 following the termination of this Agreement, except that there shall be no indemnification for (i) any capacity in which such person or entity serves as an Indemnified Party with respect to any act or omission suffered or taken while serving in such capacity. The amount of a Manager Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them in respect of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be is entitled under this Section 6 in respect of any agreementmatter, pursuant transaction or state of affairs shall be reduced by the amount of any insurance proceeds actually received and entitled to be retained by such Indemnified Party and by the amount of any action indemnification payment from any issuer of securities owned by the Fund actually received and entitled to be retained by such Indemnified Party, in each case to the extent such proceeds or payment are on account of the Companysame matter, as a matter transaction or state of Law affairs. Each Indemnified Party, if otherwise entitled to indemnification from the Fund hereunder, shall use reasonable efforts to seek indemnification from other available third party sources other than the General Partner or otherwise, any Limited Partner (including under any insurance policies by which such person is covered) and shall continue account to the Fund for any amounts received by it from such sources. If such Indemnified Party is a person other than the General Partner, it shall obtain the written consent of the General Partner prior to entering into any compromise or settlement in respect of such claim that would result in an obligation of the Fund to indemnify such Indemnitee. If liabilities arise out of the conduct of the business and affairs of the Fund and of any other person for which the Indemnified Party entitled to indemnification from the Fund hereunder was then acting in a similar capacity, the amount of the indemnification provided by the Fund shall be limited to the Fund’s proportionate share thereof as determined in good faith by the General Partner in light of its fiduciary duties to the Fund. To the maximum extent permitted by applicable law, any act or omission taken or suffered by an Indemnified Party who has ceased to serve regarding any matter which this Agreement provides is in such capacityIndemnified Party’s discretion or sole discretion shall be conclusively deemed not to constitute fraud, wilful misfeasance or negligence. To the extent that, at law or in equity, an Indemnified Party has duties (including fiduciary duties) and liabilities relating thereto to the Fund or to the Partners, the General Partner and any other Indemnified Party acting in connection with the Fund’s business or affairs under this Agreement shall not be liable to the Fund or to any Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, including this Section 6, to the extent that they restrict the duties and liabilities of an Indemnified Party otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of such Indemnified Party. Promptly after becoming aware of any matter that may give rise to a claim for indemnification hereunder, the General Partner will provide to the Limited Partners written notice of such matter specifying (to the extent that information is available) the factual basis for any claim and the amount of such claim (or if an amount is not then determinable, an estimate of the amount of the claim, if an estimate is feasible in the circumstances). The General Partner will keep the Limited Partners informed of the status of any claims on a regular basis. The General Partner shall hold the benefit of this Section for its own benefit and for the benefit of the Indemnified Parties. The indemnification obligations set forth in this Section 6 shall survive the termination of this Agreement and the dissolution and winding-up of the Fund. The provisions of this Section 6 shall enure to the benefit of the successors, permitted assigns, heirs and personal representatives of the Indemnified Parties.
Appears in 1 contract
Sources: Limited Partnership Agreement
Exculpation and Indemnification. (a) The Asset Manager, its Affiliates and their respective Constituent Members, employees, managers, consultants and agents (collectively, Notwithstanding anything to the “Manager Indemnified Parties”) will not be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Boardcontrary in this Agreement, the General Partner, its members and Affiliates and its and their directors, officers, shareholders, partners, trustees and employees (individually and respectively, a "Released Party") shall not be liable to the Company Board Partnership or to the members, managers or partners of Parent, the Company or any of their respective Subsidiaries Limited Partners for any acts losses, claims, damages or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
(b) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, liabilities arising from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including any act or omission performed or omitted by any such Released Party arising out of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with, in respect of with this Agreement or arising from any acts the Partnership's business or omissions of such Manager Indemnified Party made in the performance of this Agreementaffairs, except that there shall be no indemnification for (i) any act such loss, claim, damage or omission liability attributable to the negligence or willful misconduct of such Released Party or a Manager Indemnified material breach of this Agreement which such Released Party fails to cure, or fails to cause the General Partner to cure, within ten (10) Business Days following receipt by the General Partner of notice of such breach from the Required Partners (a "Breach"), provided that constitutes a Bad Act if such breach is capable of being cured but cannot be cured with diligent efforts within such period of 10 Business Days and if such Released Party or the General Partner, as the case may be, has commenced to cure such breach within such period of 10 Business Days, no Breach of this Agreement shall be deemed to have occurred unless either (a) such Released Party or the General Partner, as the case may be, ceases to proceed diligently to cure such breach or (b) such breach is not cured within fifteen (15) days after the receipt by the General Partner of such notice of the breach, or (ii) any indemnification obligation such loss, claim, damage or liability attributable to or arising out of or as a result of any Released Party's position as an officer, director, trustee or controlling stockholder (except in the case of any such loss, claim, damage or liability attributable to such person's position as a controlling stockholder arising solely by reason of the Manager Indemnified Parties initial funding of the Partnership Investment pursuant to Section 5.3(b)(ivthe Contribution Agreement) of the Parent LP Agreement ▇▇▇▇ Centers Trust or the Losses related thereto.
(c) To with respect to actions taken or omitted to be taken by them in such capacity. The General Partner shall, to the fullest extent permitted by applicable Lawlaw, Asset Manager shall and does hereby agree to indemnify indemnify, defend and hold harmless the Partnership and pay all judgments and claims against Parent, the Company and its Subsidiaries and each of their respective Constituent Members, employees, managers, consultants and agents (collectively, the “Parent Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and Limited Partners against any Loss incurred losses, claims, damages or liabilities to which the Partnership or such Limited Partners may become subject in connection with (i) any Breach or (ii) actions or omissions of any Released Party after the Closing Date relating to their positions as executive officers, trustees, directors or controlling stockholders (except in the case of any such loss, claim, damage or liability attributable to such person's position as a controlling stockholder arising solely by reason of the initial funding of the Partnership Investment pursuant to the Contribution Agreement) of ▇▇▇▇ Centers Trust or actions taken or omitted to be taken by them in respect such capacity.
(b) The Partnership shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless each Released Party against any losses, claims, damages or liabilities to which such Released Party may become subject in connection with any matter arising out of or arising from any acts or omissions by any Manager Indemnified Party pursuant to or in accordance connection with this Agreement constituting a Bad Act. Each of or the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of Partnership's business or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnification; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunderaffairs, except to the extent such failure actually prejudices the Indemnitor. The Indemnitor shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement madeloss, without its prior written consentclaim, damage or liability attributable to the gross negligence, willful misconduct or Breach of such Released Party or as a result of any Released Party's position as an officer, trustee, director or controlling stockholder of ▇▇▇▇ Centers Trust or with respect to actions taken by or omitted to be taken by any Released Party in such capacity. If any Released Party becomes involved in any capacity in any action, proceeding or investigation in connection with any matter arising out of or in connection with this Agreement or the Indemnitor is entitled toPartnership's business or affairs, the Partnership shall reimburse such Released Party for its legal and doesother expenses (including the cost of any investigation and preparation) as they are incurred in connection therewith, assume provided that such defense by delivering the aforementioned notice Released Party shall promptly repay to the Indemnified Party, Partnership the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense amount of any such action, with its own counsel and at its own expense. In addition, reimbursed expenses paid to it if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall ultimately be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Released Party is was not entitled to be indemnified hereunderby the Partnership in connection with such action, proceeding or investigation. Any such obligation of the Partnership shall be limited to the assets of the Partnership and there shall be no personal liability of any of the Limited Partners for any such obligation of the Partnership.
(fc) If a claim Each Partner covenants for indemnification itself and its successors, assigns, heirs and personal representatives that such Person will, at any time prior to or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a written notice of claim therefor has been received by the Indemnitor, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action dissolution of the CompanyPartnership, on demand, whether before or after such Person's withdrawal from the Partnership, pay to the Partnership or the General Partner any amount which the Partnership or the General Partner, as a matter the case may be, pays in respect of Law taxes (including withholding taxes) imposed upon income of or otherwise, and shall continue as distributions to an Indemnified Party who has ceased to serve in such capacityPartner.
Appears in 1 contract
Sources: Limited Partnership Agreement (Acadia Realty Trust)
Exculpation and Indemnification. (a) The Asset None of the Manager, its Affiliates and their respective Constituent Membersthe Members or the Officers (each, employees, managers, consultants and agents (collectively, the an “Manager Indemnified PartiesParty”) will not shall be liable to Parent, the Company or any of their respective Subsidiaries, the Parent Board, the General Partner, other Person who has an interest in the Company Board for any loss, damage or the members, managers or partners of Parent, the Company claim (a “Loss”) (or any of their respective Subsidiaries for any acts expenses or omissions by any Manager Indemnified Party, pursuant to or in accordance with this Agreement, except for any acts or omissions by any Manager Indemnified Party constituting a Bad Act.
costs associated therewith (b“Costs”)) To the fullest extent permitted by applicable Law, Company shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Manager Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11, from and against any Loss incurred by them for any act or omission taken or suffered by each Manager Indemnified Party (including reason of any act or omission performed or omitted by any of them such Indemnified Party in good faith reliance upon on behalf of the Company and in accordance with a manner reasonably believed to be within the opinion or advice scope of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that the authority conferred on such Persons were selected and monitored with reasonable care) in connection with, in respect of or arising from any acts or omissions of such Manager Indemnified Party made in the performance of by this Agreement, except that there an Indemnified Party shall be no liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from the Company for (i) any Loss or Costs incurred by such Indemnified Party by reason of any act or omission of a Manager performed or omitted by such Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation in good faith on behalf of the Manager Indemnified Parties pursuant to Section 5.3(b)(iv) of the Parent LP Agreement or the Losses related thereto.
(c) To the fullest extent permitted by applicable Law, Asset Manager shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against Parent, the Company and its Subsidiaries and each in a manner reasonably believed to be within the scope of their respective Constituent Membersthe authority conferred on such Indemnified Party by this Agreement, employees, managers, consultants and agents (collectively, the “Parent except that no Indemnified Parties” and together with the Manager Indemnified Parties, the “Indemnified Parties”), from and against any Loss incurred by them Party shall be entitled to be indemnified in respect of any Loss or arising from any Costs incurred by such Indemnified Party by reason of such Indemnified Party’s gross negligence or willful misconduct with respect to such acts or omissions by any Manager Indemnified Party pursuant to or in accordance with this Agreement constituting a Bad Act. Each of the Parent Indemnified Parties (excluding the Company) shall be a third-party beneficiary of this Agreement solely for purposes of this Section 11. For the avoidance of doubt, for purposes of this Section 11(c), any Loss in respect of or arising from an act by the Asset Manager in its capacity as a fiduciary under the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder shall not constitute a Bad Act.
(d) The Indemnified Party will promptly notify the party against whom indemnity is claimed (the “Indemnitor”) of any claim for which it seeks indemnificationomissions; provided, however, that the failure to so notify the Indemnitor will not relieve the Indemnitor from any liability which it may have hereunder, except indemnity under this Section 6.05 shall be provided out of and to the extent such failure actually prejudices the Indemnitorof Company assets only, and no Manager, Member, or Officer shall have personal liability on account thereof. The Indemnitor Company shall have the right to assume the defense and settlement of such claim; provided, that the Indemnitor notifies the Indemnified Party of its election to assume such defense and settlement within thirty (30) days after the Indemnified Party gives the Indemnitor notice of the claim. In such case, the Indemnified Party will not settle or compromise such claim, and the Indemnitor will not be liable for any such settlement made, without its prior written consent. If the Indemnitor is entitled to, and does, assume such defense by delivering the aforementioned notice to the Indemnified Party, the Indemnified Party will (i) have the right to approve the Indemnitor’s counsel (which approval will not be unreasonably withheld, delayed or conditioned), (ii) be obligated to cooperate in furnishing evidence and testimony and in any other manner in which the Indemnitor may reasonably request, and (iii) be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. In addition, if the Indemnitor assumes such defense, the Indemnitor may settle any such claim without the prior consent of the Indemnified Party if such settlement involves the full release of the Indemnified Party and does not impose any non-monetary remedies and conditions on the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
(e) Expenses reasonably advance Costs incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 11(b) or Section 11(c) shall be advanced by the Indemnitor prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such an Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder.
(f) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full connection with any Loss within twenty (20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from to time; provided such statement provides reasonable documentary evidence of such Costs and provides a written notice of claim therefor has been received undertaking by the IndemnitorIndemnified Party to repay any and all advanced Costs in the event such Indemnified Party is ultimately determined to not be entitled to indemnification by the Company. The Company may enter into agreements with its Officers to provide for indemnification consistent with the terms and conditions set forth in this Section 6.05.
(b) The provisions of this Section 6.05 are for the benefit of the Indemnified Parties, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the claimant may file suit benefit of any other Persons. Any amendment, modification or repeal of this Section 6.05 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Company’s liability to recover the unpaid amount of any Indemnified Party under this Section 6.05 as in effect immediately prior to such claim andamendment, if successful modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, shall prior to such amendment, modification or repeal, regardless of when such claims may arise or be entitled to be paid the expenses of prosecuting such claim.
(g) The indemnification provided by this Section 11 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Company, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.asserted,
Appears in 1 contract
Sources: Limited Liability Company Agreement (L Brands Service Company, LLC)