Common use of Grant of Indemnity Clause in Contracts

Grant of Indemnity. (i) Subject to and upon the terms and conditions of this Agreement, the Corporation shall indemnify and hold harmless the Indemnified Party, his or her heirs, executors, administrators or assigns, to the fullest extent permitted by applicable law, in respect of any and all costs, claims, losses, damages and expenses that may be incurred or suffered by the Indemnified Party as a result of or arising out of prosecuting, defending, settling, investigating, being a witness in, participating in as a party or preparing to defend in connection with: (1) any threatened, pending or completed claim, demand, inquiry, investigation, action, suit or proceeding, whether formal or informal, or whether brought by or in the right of the Corporation, by a stockholder or an employee of the Corporation or one of the Corporation’s subsidiaries, or by a Plan participant or beneficiary, or otherwise, and whether of a civil, criminal, administrative or investigative nature, in which the Indemnified Party may be or may have been involved as a party or otherwise, arising out of the fact that the Indemnified Party is or was [the Trustee of the Publix Super Markets, Inc. Employee Stock Ownership Plan and Trust] [the Trustee of the Publix Super Markets, Inc. 401(k) SMART Plan] [a member of the Investment Committee and/or a fiduciary of the Plan, or any successor or replacement committee or plan]; (2) any attempt (regardless of its success) by any person to charge or cause the Indemnified Party to be charged with wrongdoing or with financial responsibility for damages arising out of or incurred in connection with the matters indemnified against in this Agreement; (3) any expense, interest, assessment, fine, tax (including an excise tax), penalties, judgment or settlement payment arising out of or incident to any of the matters indemnified against in this Agreement, including without limitation reasonable fees and disbursements of legal counsel, legal assistants, experts, accountants, consultants and investigators (before and at trial, in appellate proceedings and otherwise); or (4) any federal, state, local, or foreign taxes imposed or sought to be imposed on the Indemnified Party as a result of the actual or deemed receipt of any payments under this Agreement. (ii) The obligation of the Corporation under this Agreement is not conditioned in any way on any attempt by the Indemnified Party to collect from an insurer any amount under a liability insurance policy. (iii) Except as otherwise provided in Section 1(a)(iv), in no case shall any indemnification be provided under this Agreement to the Indemnified Party by the Corporation: (1) in any action or proceeding brought by or in the name or interest of the Indemnified Party against the Corporation except for an action to enforce or interpret this Agreement or for an action or proceeding that the Corporation has joined in or consented to the initiation of; (2) in any action or proceeding brought by the Corporation against the Indemnified Party, which action is initiated at the direction of the Board of Directors of the Corporation; or (3) for any “Nonindemnifiable Conduct” (as such term is defined in Section 1(g)(ii)), but no limitation contained in this Section 1(a)(iii)(3) shall prohibit or otherwise restrict, or provide the Corporation with a basis to withhold payments with respect to, the indemnification of the Indemnified Party (subject to the repayment provisions of Section l(g)) unless and until it is determined by a court of competent jurisdiction from which no appeal may be taken that the Indemnified Party’s actions or omissions constitute such “Nonindemnifiable Conduct.” (iv) Notwithstanding any other provision of this Agreement, to the extent that the Indemnified Party has been successful on the merits or otherwise in defense of any action or proceeding, or in defense of any claim, issue or matter therein, including dismissal without prejudice, the Indemnified Party shall be indemnified against any and all expenses incurred in connection therewith. (v) The Corporation shall also indemnify the Indemnified Party against any and all expenses actually and reasonably incurred and, if requested in writing by the Indemnified Party, shall (within thirty days of such request) advance such expenses to the Indemnified Party involving (a) the interpretation or enforcement of the rights of the Indemnified Party under this Agreement or any other agreement or Corporation bylaw now or hereafter in effect relating to actions or proceedings for indemnification and/or (b) recovery by the Indemnified Party under any directors’, officers’ and/or fiduciaries’ liability insurance policies maintained by the Corporation or the Plan, regardless of whether the Indemnified Party ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery, as the case may be.

Grant of Indemnity. (a) Sellers hereby indemnify and agree to hold Buyers harmless from, against and in respect of (and shall on demand reimburse Buyers for): (i) Subject any and all loss, liability or damage suffered or incurred by Buyers by reason of any untrue representation, breach of warranty or nonfulfillment of any covenant by Sellers contained herein or in any certificate, document or instrument delivered to Buyers pursuant hereto or in connection herewith; and (ii) any and upon all loss, liability or damage suffered or incurred by Buyers in respect of or in connection with any liabilities of GCM not specifically assumed by Buyers pursuant to the terms and conditions of this Agreement, the Corporation shall . (b) Buyers hereby agree to indemnify and hold Sellers harmless the Indemnified Partyfrom, his or her heirs, executors, administrators or assigns, to the fullest extent permitted by applicable law, against and in respect of (and shall on demand reimburse them for): (i) any and all costsloss, claimsliability or damage resulting from any untrue representation, losses, damages and expenses that may be incurred breach of warranty or suffered nonfulfillment of any covenant or agreement by the Indemnified Party as a result of or arising out of prosecuting, defending, settling, investigating, being a witness in, participating in as a party or preparing to defend in connection with: (1) any threatened, pending or completed claim, demand, inquiry, investigation, action, suit or proceeding, whether formal or informal, or whether brought by Buyers contained herein or in the right of the Corporationany certificate, by a stockholder document or an employee of the Corporation or one of the Corporation’s subsidiaries, or by a Plan participant or beneficiary, or otherwise, and whether of a civil, criminal, administrative or investigative nature, in which the Indemnified Party may be or may have been involved as a party or otherwise, arising out of the fact that the Indemnified Party is or was [the Trustee of the Publix Super Markets, Inc. Employee Stock Ownership Plan and Trust] [the Trustee of the Publix Super Markets, Inc. 401(k) SMART Plan] [a member of the Investment Committee and/or a fiduciary of the Plan, or any successor or replacement committee or plan]instrument delivered to Sellers hereunder; (2ii) any attempt (regardless and all liabilities or obligations of its success) Sellers specifically assumed by any person Buyers pursuant to charge or cause the Indemnified Party to be charged with wrongdoing or with financial responsibility for damages arising out of or incurred in connection with the matters indemnified against in this Agreement; (3iii) any expenseand all liabilities or obligations of GCM, interestdirect or indirect, assessmentfixed, finecontingent or otherwise, tax (including an excise tax), penalties, judgment which exist at or settlement payment arising out of or incident to any as of the matters indemnified against in this Agreement, including without limitation reasonable fees and disbursements of legal counsel, legal assistants, experts, accountants, consultants and investigators (before and at trial, in appellate proceedings and otherwise); or (4) any federal, state, local, or foreign taxes imposed or sought to be imposed on the Indemnified Party as a result date of the actual Closing hereunder or deemed receipt which arise after the Closing but which are based upon or arise from any act, transaction, circumstance, sale of any payments under this Agreement. (ii) The obligation goods or services, state of facts or other condition which occurred or existed on or before the date of the Corporation under this Agreement is Closing, whether or not conditioned in any way on any attempt by the Indemnified Party to collect from an insurer any amount under a liability insurance policy. (iii) Except as otherwise provided in Section 1(a)(iv)then known, in no case shall any indemnification be provided under this Agreement due or payable, related to the Indemnified Party by the Corporation: (1) in any action or proceeding brought by or in the name or interest of the Indemnified Party against the Corporation except for an action to enforce or interpret this Agreement or for an action or proceeding that the Corporation has joined in or consented to the initiation of; (2) in any action or proceeding brought by the Corporation against the Indemnified Party, which action is initiated at the direction of the Board of Directors of the CorporationAcquired Assets and Assumed Liabilities; or (3) for any “Nonindemnifiable Conduct” (as such term is defined in Section 1(g)(ii)), but no limitation contained in this Section 1(a)(iii)(3) shall prohibit or otherwise restrict, or provide the Corporation with a basis to withhold payments with respect to, the indemnification of the Indemnified Party (subject to the repayment provisions of Section l(g)) unless and until it is determined by a court of competent jurisdiction from which no appeal may be taken that the Indemnified Party’s actions or omissions constitute such “Nonindemnifiable Conduct.”and (iv) Notwithstanding any other provision loss, liability or damage arising out of this Agreement, to and resulting from the extent that the Indemnified Party has been successful on the merits or otherwise in defense of any action or proceeding, or in defense of any claim, issue or matter therein, including dismissal without prejudice, the Indemnified Party shall be indemnified against any Acquired Assets and all expenses incurred in connection therewithAssumed Liabilities. (vc) The Corporation shall also indemnify the Indemnified Party against any Nature and all expenses actually Survival of Representations and reasonably incurred andWarranties. All statements, if requested in writing representations, warranties, indemnities, covenants and agreements made by the Indemnified Party, shall (within thirty days of such request) advance such expenses to the Indemnified Party involving (a) the interpretation or enforcement each of the rights parties hereto shall survive the Closing for a term of the Indemnified Party under this Agreement or any other agreement or Corporation bylaw now or hereafter in effect relating to actions or proceedings for indemnification and/or three (b3) recovery by the Indemnified Party under any directors’, officers’ and/or fiduciaries’ liability insurance policies maintained by the Corporation or the Plan, regardless of whether the Indemnified Party ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery, as the case may beyears.

Grant of Indemnity. (a) Acquisition Parties hereby indemnify and agree to hold NBC harmless from, against and in respect of (and shall on demand reimburse NBC for): (i) Subject to any and upon the terms all loss, claim, liability, damage or expense (each a "Loss" and conditions collectively, "Losses") suffered or incurred by NBC by reason of this Agreementany untrue representation, the Corporation shall indemnify breach of warranty or nonfulfillment of any covenant by Acquisition Parties; (ii) any and hold harmless the Indemnified Partyall loss, his liability or her heirs, executors, administrators damage suffered or assigns, to the fullest extent permitted incurred by applicable law, NBC in respect of or in connection with any liabilities of Acquisition Parties which are not Assumed Liabilities; (iii) any and all costsdebts, liabilities or obligations of Acquired Parties, direct or indirect, fixed, contingent or otherwise, which exist at or as of the date of the Closing hereunder or which arise after the Closing but which are based upon or arise from any act, transaction, circumstance, sale of goods or services, state of facts or other condition which occurred or existed on or before the date of the Closing, whether or not then known, due or payable, except for the Assumed Liabilities; (iv) any and all actions, suits, proceedings, claims, lossesdemands, damages assessments, judgments, costs and expenses that may be incurred or suffered by the Indemnified Party as a result of or arising out of prosecutingexpenses, defendingincluding, settlingwithout limitation, investigatinglegal fees and expenses, being a witness in, participating in as a party or preparing to defend in connection with: (1) any threatened, pending or completed claim, demand, inquiry, investigation, action, suit or proceeding, whether formal or informal, or whether brought by or in the right of the Corporation, by a stockholder or an employee of the Corporation or one of the Corporation’s subsidiaries, or by a Plan participant or beneficiary, or otherwise, and whether of a civil, criminal, administrative or investigative nature, in which the Indemnified Party may be or may have been involved as a party or otherwise, arising out of the fact that the Indemnified Party is or was [the Trustee of the Publix Super Markets, Inc. Employee Stock Ownership Plan and Trust] [the Trustee of the Publix Super Markets, Inc. 401(k) SMART Plan] [a member of the Investment Committee and/or a fiduciary of the Plan, or any successor or replacement committee or plan]; (2) any attempt (regardless of its success) by any person to charge or cause the Indemnified Party to be charged with wrongdoing or with financial responsibility for damages arising out of or incurred in connection with the matters indemnified against in this Agreement; (3) any expense, interest, assessment, fine, tax (including an excise tax), penalties, judgment or settlement payment arising out of or incident to any of the matters indemnified against foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this Agreement, including without limitation reasonable fees and disbursements of legal counsel, legal assistants, experts, accountants, consultants and investigators (before and at trial, in appellate proceedings and otherwise); orindemnity. (4b) NBC hereby agrees to indemnify and hold Acquisition Parties harmless from, against and in respect of (and shall on demand reimburse them for): (i) any federaland all loss, stateliability or damage resulting from any untrue representation, local, breach of warranty or foreign taxes imposed or sought to be imposed on the Indemnified Party as a result of the actual or deemed receipt nonfulfillment of any payments under this Agreement.covenant or agreement by NBC contained herein or in any certificate, document or instrument delivered to Acquisition Parties hereunder; (ii) The obligation any and all loss, liability or damage arising from or out of the Corporation under this Agreement is not conditioned in any way on any attempt by the Indemnified Party to collect from an insurer any amount under a liability insurance policy.Assumed Liabilities; and (iii) Except as otherwise provided in Section 1(a)(iv)any and all actions, in no case shall suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, legal fees and expenses, incident to any indemnification be provided under this Agreement to the Indemnified Party by the Corporation: (1) in any action or proceeding brought by or in the name or interest of the Indemnified Party against foregoing or incurred in investigating or attempting to avoid the Corporation except for an action same or to enforce or interpret this Agreement or for an action or proceeding that oppose the Corporation has joined in or consented to the initiation of; (2) in any action or proceeding brought by the Corporation against the Indemnified Party, which action is initiated at the direction of the Board of Directors of the Corporation; or (3) for any “Nonindemnifiable Conduct” (as such term is defined in Section 1(g)(ii)), but no limitation contained in this Section 1(a)(iii)(3) shall prohibit or otherwise restrict, or provide the Corporation with a basis to withhold payments with respect to, the indemnification of the Indemnified Party (subject to the repayment provisions of Section l(g)) unless and until it is determined by a court of competent jurisdiction from which no appeal may be taken that the Indemnified Party’s actions or omissions constitute such “Nonindemnifiable Conduct.” (iv) Notwithstanding any other provision of this Agreement, to the extent that the Indemnified Party has been successful on the merits or otherwise in defense of any action or proceedingimposition thereof, or in defense of any claim, issue or matter therein, including dismissal without prejudice, the Indemnified Party shall be indemnified against any and all expenses incurred in connection therewithenforcing this indemnity. (vc) The Corporation shall also indemnify the Indemnified Party against any and all expenses actually and reasonably incurred and, if requested Except as excused in writing by the Indemnified Partyparties, all representations and warranties contained herein will survive the execution and delivery of this Agreement and the consummation of transactions contemplated hereby, and the Acquisition Parties shall (within thirty days be liable to NBC for any claims or undisclosed liabilities for the period of any statute of limitations with respect to such request) advance liabilities. This liability will be joint and several. In the event that NBC receives notice of any such expenses claim for which it believes the Acquisition Parties or any one of them may be liable, NBC shall thereupon give written notice to the Indemnified Party involving (a) the interpretation party thought or enforcement of the rights of the Indemnified Party under this Agreement claimed to be liable and that party or any other Acquisition Party involved shall have the duty and responsibility of defending or settling said claim. In such case, the indemnifying party shall keep NBC fully advised as to the status of any such claim and if at any time it appears within the reasonable judgment of NBC that such claim is not being defended or resolved so as to avoid the imposition of additional liability upon NBC, NBC may thereupon assume the defense or negotiated settlement of such claim and the Acquisition Party or parties responsible or against whom such claim is asserted shall be fully liable to NBC for all costs and expenses involved in the resolution of any such claim. (d) Anything in this agreement or Corporation bylaw now or hereafter to the contrary notwithstanding, the indemnity benefits granted in effect relating this section shall survive the Closing Date for a period equal to actions or proceedings the statute of limitations applicable to the conduct for which indemnity is sought. (e) Anything in this agreement to the contrary notwithstanding, no party shall be required to make payment for indemnification and/or pursuant to this Section 9.1 with respect to any Losses until such Losses exceed $5,000 in the aggregate, in which case such party shall be liable only for Losses arising from a breach of representation or warranty above $5,000. Notwithstanding anything to the contrary contained herein, no party shall be liable for indemnification hereunder in excess of $5,000,000. (bf) recovery by These indemnity provisions are subject to the Indemnified Party under any directors’, officers’ and/or fiduciaries’ liability insurance policies maintained by the Corporation or the Plan, regardless qualifications contained in paragraph 10.17 of whether the Indemnified Party ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery, as the case may bethis Agreement.

Grant of Indemnity. (i) Subject SELLER agrees to and upon the terms and conditions of this Agreementindemnify, the Corporation shall indemnify defend and hold ProMedCo and ProMedCo-SW and their Affiliates, and subsidiaries, and its and their respective employees, representatives, officers and agents, harmless the Indemnified Party, his or her heirs, executors, administrators or assigns, to the fullest extent permitted by applicable law, in respect of from and against any and all costs, claims, losses, liability, obligations, lawsuits, deficiencies, damages or expense of whatever nature, whether known or unknown, accrued, absolute, contingent or otherwise including (without limitation) interest, penalties, attorneys' fees, costs of investigation and expenses that may be all amounts paid in defense or settlement of the foregoing, suffered or incurred by ProMedCo or suffered by the Indemnified Party ProMedCo-SW as a result of the occurrence of any of the following: (i) the Assets were subject to any liabilities or arising out obligations of prosecuting, defending, settling, investigating, being a witness in, participating in as a party or preparing to defend in connection with: (1) any threatened, pending or completed claim, demand, inquiry, investigation, action, suit or proceedingkind, whether formal or informalaccrued, or whether brought by or in the right of the Corporationabsolute, by a stockholder or an employee of the Corporation or one of the Corporation’s subsidiaries, or by a Plan participant or beneficiary, contingent or otherwise, which are not being specifically assumed by ProMedCo-SW hereunder, including without limitation, liabilities for federal, state, local and other applicable taxes of every kind and description, whether or not said liabilities or obligations are disclosed in Exhibit 3.4; (ii) SELLER did not have title to any of the Assets; (iii) a civilbreach of any obligation, criminalrepresentation, administrative warranty, covenant or investigative natureagreement made by SELLER in this Agreement or any agreement referred to herein or because any representation or warranty by SELLER contained herein, in which the Indemnified Party may any document furnished or required to be furnished pursuant to this Agreement by SELLER to ProMedCo or may have been involved as a party ProMedCo-SW or otherwise, arising out any of the fact that the Indemnified Party is or was [the Trustee of the Publix Super Markets, Inc. Employee Stock Ownership Plan and Trust] [the Trustee of the Publix Super Markets, Inc. 401(k) SMART Plan] [a member of the Investment Committee and/or a fiduciary of the Plantheir representatives, or any successor or replacement committee or plan]; documents furnished to ProMedCo and ProMedCo-SW in connection with the Closing hereunder, shall be false; (2iv) any attempt (regardless of its success) by any person to charge or cause the Indemnified Party to be charged with wrongdoing or with financial responsibility for damages litigation arising out of or incurred based upon events or operative facts occurring prior to the Closing Date, in connection with the matters indemnified against Assets, whether or not disclosed in Exhibit 3.16; (v) any employee benefits, including pension or retirement benefits, and any severance payments to the employees of SELLER which are or may be assessed as a result of the transactions contemplated by this Agreement, payable to or on behalf of the employees of SELLER as of the Closing Date, or 0400630.14 080020-015 05/07/97 (1) due through the consummation of this Agreement; (vi) any and all liabilities related to any pre-Closing violation of law, regulation or ruling applicable to any employee benefit plan and/or any labor or employment practice or policy for which ProMedCo or one of ProMedCo's affiliates assumes sponsorship or otherwise becomes liable for as a successor employer; (vii) unless otherwise specifically agreed in this Agreement; , any and all claims, including legal, administrative or creditor claims or actions, in connection with the Assets or their sale or transfer hereunder, if any fact material to any such claim or cause of action pleaded or stated there occurred prior to or on the Closing Date; and (3viii) any expense, interest, assessment, fine, tax costs and expenses (including an excise tax)reasonable attorneys' fees) incurred by ProMedCo and ProMedCo-SW in connection with any demand, penaltiesaction, suit, proceeding, assessment or judgment or settlement payment arising out of or incident to any of the matters indemnified against in this Agreement, including without limitation reasonable fees and disbursements of legal counsel, legal assistants, experts, accountants, consultants and investigators (before and at trial, in appellate proceedings and otherwise); or (4) any federal, state, local, or foreign taxes imposed or sought to be imposed on the Indemnified Party as a result of the actual or deemed receipt of any payments under this Agreementforegoing. (ii) The obligation of the Corporation under this Agreement is not conditioned in any way on any attempt by the Indemnified Party to collect from an insurer any amount under a liability insurance policy. (iii) Except as otherwise provided in Section 1(a)(iv), in no case shall any indemnification be provided under this Agreement to the Indemnified Party by the Corporation: (1) in any action or proceeding brought by or in the name or interest of the Indemnified Party against the Corporation except for an action to enforce or interpret this Agreement or for an action or proceeding that the Corporation has joined in or consented to the initiation of; (2) in any action or proceeding brought by the Corporation against the Indemnified Party, which action is initiated at the direction of the Board of Directors of the Corporation; or (3) for any “Nonindemnifiable Conduct” (as such term is defined in Section 1(g)(ii)), but no limitation contained in this Section 1(a)(iii)(3) shall prohibit or otherwise restrict, or provide the Corporation with a basis to withhold payments with respect to, the indemnification of the Indemnified Party (subject to the repayment provisions of Section l(g)) unless and until it is determined by a court of competent jurisdiction from which no appeal may be taken that the Indemnified Party’s actions or omissions constitute such “Nonindemnifiable Conduct.” (iv) Notwithstanding any other provision of this Agreement, to the extent that the Indemnified Party has been successful on the merits or otherwise in defense of any action or proceeding, or in defense of any claim, issue or matter therein, including dismissal without prejudice, the Indemnified Party shall be indemnified against any and all expenses incurred in connection therewith. (v) The Corporation shall also indemnify the Indemnified Party against any and all expenses actually and reasonably incurred and, if requested in writing by the Indemnified Party, shall (within thirty days of such request) advance such expenses to the Indemnified Party involving (a) the interpretation or enforcement of the rights of the Indemnified Party under this Agreement or any other agreement or Corporation bylaw now or hereafter in effect relating to actions or proceedings for indemnification and/or (b) recovery by the Indemnified Party under any directors’, officers’ and/or fiduciaries’ liability insurance policies maintained by the Corporation or the Plan, regardless of whether the Indemnified Party ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery, as the case may be.

Grant of Indemnity. (ia) Subject KDC agrees to and upon the terms and conditions of this Agreementindemnify, the Corporation shall indemnify defend and hold ProMedCo and ProMedCo-Temple and their Affiliates, and subsidiaries, and its and their respective employees, representa tives, officers and agents, harmless the Indemnified Party, his or her heirs, executors, administrators or assigns, to the fullest extent permitted by applicable law, in respect of from and against any and all costs, claims, losses, liability, obligations, lawsuits, deficiencies, damages and expenses that may be incurred or suffered by the Indemnified Party as a result expense of or arising out of prosecuting, defending, settling, investigating, being a witness in, participating in as a party or preparing to defend in connection with: (1) any threatened, pending or completed claim, demand, inquiry, investigation, action, suit or proceedingwhatever nature, whether formal known or informalunknown, accrued, absolute, contingent or whether brought by or in the right of the Corporation, by a stockholder or an employee of the Corporation or one of the Corporation’s subsidiaries, or by a Plan participant or beneficiary, or otherwise, and whether of a civil, criminal, administrative or investigative nature, in which the Indemnified Party may be or may have been involved as a party or otherwise, arising out of the fact that the Indemnified Party is or was [the Trustee of the Publix Super Markets, Inc. Employee Stock Ownership Plan and Trust] [the Trustee of the Publix Super Markets, Inc. 401(kotherwise including (without limitation) SMART Plan] [a member of the Investment Committee and/or a fiduciary of the Plan, or any successor or replacement committee or plan]; (2) any attempt (regardless of its success) by any person to charge or cause the Indemnified Party to be charged with wrongdoing or with financial responsibility for damages arising out of or incurred in connection with the matters indemnified against in this Agreement; (3) any expense, interest, assessment, fine, tax (including an excise tax), penalties, judgment attorneys' fees, costs of investigation and all amounts paid in defense or settlement payment arising out of or incident to any of the matters indemnified against in this Agreementforegoing, including without limitation reasonable fees and disbursements of legal counsel, legal assistants, experts, accountants, consultants and investigators (before and at trial, in appellate proceedings and otherwise); or (4) any federal, state, local, suffered or foreign taxes imposed incurred by ProMedCo or sought to be imposed on the Indemnified Party ProMedCo-Temple as a result of the actual or deemed receipt occurrence of any payments under this Agreement. of the following: (i) the Assets were subject to any liabilities or obligations of any kind, whether accrued, absolute, contingent or otherwise, which are not being specifically assumed by ProMedCo- Temple hereunder or otherwise consented to by ProMedCo-Temple, including without limitation, liabilities for federal, state, local and other applicable taxes of every kind and description, whether or not said liabilities or obligations are disclosed in Exhibit 3.4; (ii) The obligation KDC did not have title to any of the Corporation under this Agreement is not conditioned in any way on any attempt by the Indemnified Party to collect from an insurer any amount under a liability insurance policy. Assets; (iii) Except as otherwise provided in Section 1(a)(iv), in no case shall any indemnification be provided under this Agreement to the Indemnified Party by the Corporation: (1) in any action or proceeding brought by or in the name or interest of the Indemnified Party against the Corporation except for an action to enforce or interpret this Agreement or for an action or proceeding that the Corporation has joined in or consented to the initiation of; (2) in any action or proceeding brought by the Corporation against the Indemnified Party, which action is initiated at the direction of the Board of Directors of the Corporation; or (3) for any “Nonindemnifiable Conduct” (as such term is defined in Section 1(g)(ii)), but no limitation contained in this Section 1(a)(iii)(3) shall prohibit or otherwise restrict, or provide the Corporation with a basis to withhold payments with respect to, the indemnification of the Indemnified Party (subject to the repayment provisions of Section l(g)) unless and until it is determined by a court of competent jurisdiction from which no appeal may be taken that the Indemnified Party’s actions or omissions constitute such “Nonindemnifiable Conduct.” (iv) Notwithstanding any other provision of this Agreement, to the extent that the Indemnified Party has been successful on the merits or otherwise in defense breach of any action ----------- obligation, representation, warranty, covenant or proceeding, or agreement made by KDC in defense of any claim, issue or matter therein, including dismissal without prejudice, the Indemnified Party shall be indemnified against any and all expenses incurred in connection therewith. (v) The Corporation shall also indemnify the Indemnified Party against any and all expenses actually and reasonably incurred and, if requested in writing by the Indemnified Party, shall (within thirty days of such request) advance such expenses to the Indemnified Party involving (a) the interpretation or enforcement of the rights of the Indemnified Party under this Agreement or any other agreement referred to herein or Corporation bylaw now because any representation or hereafter warranty by KDC contained herein, in effect relating to actions any document furnished or proceedings for indemnification and/or (b) recovery by the Indemnified Party under any directors’, officers’ and/or fiduciaries’ liability insurance policies maintained by the Corporation or the Plan, regardless of whether the Indemnified Party ultimately is determined required to be entitled furnished pursuant to such indemnificationthis Agreement by KDC to ProMedCo or ProMedCo-Temple or any of their representatives, advancement or any documents furnished to ProMedCo and ProMedCo-Temple in connection with the Closing hereunder, shall be false; (iv) any litigation arising out of expenses or insurance recoverybased upon events or operative facts occurring prior to the Closing Date, as in connection with the case may be.Assets, whether or not disclosed in Exhibit 3.16; ------------