Common use of Liabilities; Indemnification Clause in Contracts

Liabilities; Indemnification. (a) No Member or Manager of the Company, or any combination of the foregoing, shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the Company, whether such liability or obligation arises in contract, tort or otherwise, solely by reason of being a Member or Manager of the Company or any combination of the foregoing. (b) The Company shall indemnify, defend and hold harmless each Member and Manager, and their respective directors, officers, employees, agents and attorneys from and against any and all third party losses, claims, damages and liabilities arising out of or relating to (i) the Company or the Operations, including without limitation Environmental Liabilities and Continuing Obligations, (ii) any Properties assigned to a Member as an objecting Member pursuant to Section 14.1, but only to the extent arising out of or relating to Operations, including without limitation Environmental Liabilities and Continuing Obligations, conducted prior to the date of such assignment, and (iii) any reimbursements by one Member to the other Member or Manager of any of the foregoing pursuant to Section 6.5, except in any case of clauses (i) through (iii) above to the extent such losses, claims, damages or liabilities arise out of or result from any conduct described in any of clauses (i) through (iii) of Section 4.9(c) below. In all cases of this Section 4.9(b) and without limiting Section 6.5, indemnification shall be provided only out of and to the extent of the net assets of the Company and no Member shall have any personal liability whatsoever on account thereof. Notwithstanding the foregoing, the Company’s indemnification pursuant to this Section 4.9(b) as to third party claims shall be only with respect to such loss, liability or damage that is not otherwise compensated by insurance carried for the benefit of the Company. (c) Subject to Section 4.8, each Member shall indemnify, defend and hold harmless the Company, the other Member, and such other Member’s directors, officers, employees, agents and attorneys from and against any and all losses, claims, damages and liabilities arising out of or relating to (i) any unauthorized act or any assumption of liability by the indemnifying Member (including in its capacity as a Manager), or any of its directors, officers, employees, agents and attorneys done or undertaken, or apparently done or undertaken, on behalf of the Company or the other Member, except pursuant to the authority expressly granted herein or as otherwise agreed in writing between the Members, (ii) any breach by such Member of any of its representations or warranties set forth in this Agreement or (iii) any breach by such Member of any covenant contained in this Agreement caused by or attributable to such Member’s willful misconduct or gross negligence, including in its capacity as a Manager. (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO PERSON OR ENTITY OTHER THAN A MEMBER SHALL HAVE THE RIGHT TO ENFORCE ANY REPRESENTATION OR WARRANTY OF THE OTHER MEMBER HEREUNDER, OR ANY OBLIGATION OF THE OTHER MEMBER TO CONTRIBUTE CAPITAL HEREUNDER, TO FUND CONTINUING OBLIGATIONS, TO REIMBURSE OR INDEMNIFY ANY OTHER MEMBER HEREUNDER, AND SPECIFICALLY NEITHER THE COMPANY NOR ANY LENDER OR OTHER THIRD PARTY SHALL HAVE ANY SUCH RIGHTS, IT BEING EXPRESSLY UNDERSTOOD THAT THE REPRESENTATIONS AND WARRANTIES, AND THE CONTRIBUTION, REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS SET FORTH IN Article II AND ARTICLE XIII AND SECTION 4.9 SHALL BE ENFORCEABLE ONLY BY A MEMBER AGAINST ANOTHER MEMBER (WHICH, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ARE IN ALL SUCH CASES FOR THE BENEFIT OF THE MEMBERS). FOR THE AVOIDANCE OF DOUBT, THE COMPANY SHALL BE BOUND BY ARTICLE II AND ARTICLE XIII AND SECTION 4.9(b) BUT SHALL HAVE NO RIGHT TO ENFORCE THOSE PROVISIONS AGAINST A MEMBER, SUCH RIGHTS BEING EXCLUSIVELY VESTED IN THE MEMBERS. ANY MEMBER MAY BRING A DIRECT ACTION AGAINST ANY OTHER MEMBER WITH RESPECT TO ANY OF ARTICLE II OR ARTICLE XIII OR SECTION 4.9 WITHOUT THE REQUIREMENT TO BRING A DERIVATIVE ACTION OR OTHERWISE SATISFY THE REQUIREMENTS OF SECTIONS 18-1001 THROUGH 18-1004 OF THE ACT OR OTHER SIMILAR REQUIREMENTS.

Liabilities; Indemnification. (a) No Member or Manager of the Company, or any combination of the foregoing, shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the Company, whether such liability or obligation arises in contract, tort or otherwise, solely by reason of being a Member or Manager of the Company or any combination of the foregoing. (b) The Company shall indemnify, defend and hold harmless each Member and (including in such Member’s capacity as the Manager), and their respective Representatives, directors, officers, employees, agents and attorneys attorneys, from and against any and all third party losses, claims, damages and liabilities arising out of or relating to (i) the Company or the Operations, including without limitation Environmental Liabilities and Continuing Obligations, and (ii) any Properties assigned to a Member as an objecting Member pursuant to Section 14.1, but only to the extent arising out of or relating to Operations, including without limitation Environmental Liabilities and Continuing Obligations, conducted prior to the date of such assignment, and (iii) any reimbursements reimbursement by one Member to the other Member or Manager of any of the foregoing losses, claims, damages and liabilities pursuant to Section 6.55.5, except in any each case of clauses clause (i) through and (iiiii) above to the extent such losses, claims, damages or liabilities (A) arise out of or result from any conduct described breach by such Member of any covenant contained in this Agreement (or any action or omission by the Manager in connection with its management of clauses the Company) that constitutes fraud, willful misconduct or gross negligence or (iB) through constitute Losses (iiias such term is defined in the Contribution Agreement) that give rise to a claim for indemnification under Article V of Section 4.9(c) belowthe Contribution Agreement, which indemnification provisions under such Article V of the Contribution Agreement shall be the sole and exclusive remedy with respect to any such Losses. In all cases of this Section 4.9(b) and without limiting Section 6.53.8(b), indemnification shall be provided only out of and to the extent of the net assets of the Company and no Member shall have any personal liability whatsoever on account thereof. Notwithstanding the foregoingforegoing provisions of this Section 3.8(b), the Company’s indemnification pursuant to this Section 4.9(b3.8(b) as to third party claims shall be only with respect to such loss, liability or damage that is not otherwise compensated by insurance carried for the benefit of the Company. (c) Subject to Section 4.8To the extent that the Company and/or any of its employees participates in any employee benefit plan sponsored by a Member or an Affiliate of a Member, each (i) such Member shall indemnify, defend and hold harmless the Company, the other Member, and such other Member’s directors, officers, employees, agents and attorneys Company from and against any and all losses, claims, damages and liabilities arising out of or relating to any non-Company employees under any such plan, and (iii) without limiting in any unauthorized act way the rights of any Person or any assumption of liability by the indemnifying Member (including in its capacity as a Manager), or any of its directors, officers, employees, agents and attorneys done or undertaken, or apparently done or undertaken, on behalf obligations of the Company or under Section 3.8(b), the other MemberCompany shall indemnify, except pursuant to the authority expressly granted herein or as otherwise agreed in writing between the Members, (ii) any breach by defend and hold harmless such Member and/or Affiliate of any of its representations or warranties set forth in this Agreement or (iii) any breach by such Member from and against all losses, claims, damages and liabilities arising out of or relating to any covenant contained in this Agreement caused by or attributable to Company employees under any such Member’s willful misconduct or gross negligenceplan. AMENDED AND RESTATED LLC AGREEMENT OF EUREKA MOLY, including in its capacity as a Manager. LLC – Page 14 (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO PERSON OR ENTITY OTHER THAN A MEMBER OR THE COMPANY SHALL HAVE THE RIGHT TO ENFORCE ANY REPRESENTATION OR WARRANTY OF THE OTHER MEMBER HEREUNDER, OR ANY OBLIGATION OF THE OTHER A MEMBER TO CONTRIBUTE CAPITAL HEREUNDERCAPITAL, TO FUND CONTINUING OBLIGATIONS, OBLIGATIONS OR TO REIMBURSE OR INDEMNIFY ANY OTHER MEMBER HEREUNDER, AND SPECIFICALLY NEITHER THE COMPANY NOR ANY NO LENDER OR OTHER THIRD PARTY SHALL HAVE ANY SUCH RIGHTSRIGHT, IT BEING EXPRESSLY UNDERSTOOD THAT THE REPRESENTATIONS AND WARRANTIESCAPITAL CONTRIBUTION OBLIGATIONS, CONTINUING OBLIGATIONS, AND REIMBURSEMENT OBLIGATIONS OF THE CONTRIBUTION, REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS SET FORTH IN Article II AND ARTICLE XIII AND SECTION 4.9 MEMBERS HEREUNDER SHALL BE ENFORCEABLE ONLY BY A MEMBER OR THE COMPANY AGAINST ANOTHER MEMBER (WHICH, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ARE IN ALL SUCH CASES FOR THE BENEFIT OF THE MEMBERS). FOR THE AVOIDANCE OF DOUBT, THE COMPANY SHALL BE BOUND BY ARTICLE II AND ARTICLE XIII AND SECTION 4.9(b) BUT SHALL HAVE NO RIGHT TO ENFORCE THOSE PROVISIONS AGAINST A MEMBER, SUCH RIGHTS BEING EXCLUSIVELY VESTED IN THE MEMBERS, AS APPLICABLE). ANY MEMBER MAY BRING A DIRECT ACTION AGAINST ANY OTHER MEMBER WITH RESPECT TO ANY OBLIGATION OF ARTICLE II SUCH OTHER MEMBER TO CONTRIBUTE CAPITAL, TO FUND CONTINUING OBLIGATIONS OR ARTICLE XIII OR SECTION 4.9 FOR REIMBURSEMENT HEREUNDER WITHOUT THE REQUIREMENT TO BRING A DERIVATIVE ACTION OR TO OTHERWISE SATISFY THE REQUIREMENTS OF SECTIONS 18-1001 THROUGH 18-1004 OF THE ACT OR OTHER SIMILAR REQUIREMENTS.

Liabilities; Indemnification. (a) No Member or Manager of the Company, or any combination of the foregoing, Company shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the Company, whether such liability or obligation arises in contract, tort or otherwise, solely by reason of being a Member or Manager of the Company or any combination of the foregoingCompany. (b) The Company shall indemnify, defend and hold harmless each Member and Manager, and their respective directors, officers, employees, agents and attorneys from and against any and all third party losses, claimsClaims, damages and liabilities arising out of or relating to to: (i) the Company or the Operations, including without limitation Environmental Liabilities and Continuing Obligations, ; and (ii) any Properties assigned to a Member as an objecting Member pursuant to Section 14.1, but only to the extent arising out of or relating to Operations, including without limitation Environmental Liabilities and Continuing Obligations, conducted prior to the date of such assignment, and (iii) any reimbursements by one Member to the other Member or Manager of any of the foregoing pursuant to Section 6.55.9, except in any case of clauses (i) through (iii) above to the extent such losses, claimsClaims, damages or liabilities arise out of or result from any conduct described in any of clauses Sections 4.9(e)(i) to 4.9(e)(iii) inclusive. Notwithstanding the foregoing, the Company shall not be required to indemnify, defend and hold harmless NovaCopper and its directors, officers, employees, agents and attorneys from and against any and all third party losses, Claims, damages and liabilities to the extent that such third party losses, Claims, damages and liabilities arise out or in connection with any Liabilities (iother than the Assumed Obligations). (c) through (iii) of Subject to Section 4.9(c) below. In 4.9(d), in all cases of this circumstances to which Section 4.9(b) applies and without limiting Section 6.55.9, indemnification indemnification: (i) shall be provided only out of and to the extent of the net assets of the Company and no Member shall have any personal liability whatsoever on account thereof. Notwithstanding the foregoing; and (ii) notwithstanding Section 4.9(c)(i), the Company’s indemnification pursuant to this Section 4.9(b) as to third party claims Claims shall be only with respect to such loss, liability or damage that is not otherwise compensated by insurance carried for the benefit of the Companyinsurance. (cd) If as at the date that the Company is obliged to indemnify a Member pursuant to Section 4.9(b) in respect of any of the losses, Claims, damages or liabilities described in that Section (“Indemnification Liability”) the Company: (i) does not have the financial capacity or resources to fulfill its indemnification obligations under Section 4.9(b) in respect of an Indemnification Liability; and (ii) provision for payment of that Indemnification Liability was not made in the then current approved and adopted Program and Budget; and (iii) Products are then being produced from a Project, then notwithstanding anything in Article 10 to the contrary and until such time as the Company has discharged the Indemnification Liability the Company shall be entitled without the necessity for any approval from the Board: (iv) from time to time to take possession of and sell or dispose of, for the best price reasonably obtainable on terms and conditions determined by the Company, all the Products then being produced; and (v) apply the proceeds from time to time received from such sale or disposal of the Products in the following order of priority: (A) in payment, satisfaction or reimbursement to the Company of all costs, charges and expenses incurred by the Company in connection with taking possession of, storing, insuring, transporting and selling or disposing of such Products; (B) in making all payments due in respect of the Indemnification Liability; and (C) if there is any surplus proceeds remaining from the sale of Products after the Company has discharged the Indemnification Liability, distribute such proceeds in accordance with Section 10.2. (e) Subject to Section 4.8, each Member shall indemnify, defend and hold harmless the Company, the other MemberMember and its Affiliates, and such other Member’s its and their respective directors, officers, employees, agents and attorneys from and against any and all losses, claimsClaims, damages and liabilities arising out of or relating to to: (i) any unauthorized act (which for certainty does not mean or include a breach by a Member of any term or condition of this Agreement) or any assumption of liability by the indemnifying Member (including in its capacity as a Manager)Member, or any of its directors, officers, employees, agents and attorneys done or undertaken, or apparently done or undertaken, on behalf of the Company or the other Member, except pursuant to the authority expressly granted herein or as otherwise agreed in writing between the Members, ; (ii) any breach by such Member of any of its representations express representations, warranties or warranties obligations set forth in this Agreement or Agreement, including those set forth in Article 17; or (iii) any breach by such Member of any covenant contained in this Agreement caused by or attributable to such Member’s willful misconduct Wilful Misconduct or gross negligence, including in its capacity as a ManagerGross Negligence. (df) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO PERSON OR ENTITY OTHER THAN A MEMBER SHALL HAVE THE RIGHT TO ENFORCE ANY REPRESENTATION OR WARRANTY OF A MEMBER OR THE OTHER MEMBER COMPANY HEREUNDER, OR ANY OBLIGATION OF THE OTHER A MEMBER TO CONTRIBUTE CAPITAL HEREUNDER, TO FUND CONTINUING OBLIGATIONS, TO REIMBURSE OR INDEMNIFY ANY THE OTHER MEMBER HEREUNDER, AND SPECIFICALLY NEITHER THE COMPANY NOR ANY LENDER OR OTHER THIRD PARTY SHALL HAVE ANY SUCH RIGHTS, IT BEING EXPRESSLY UNDERSTOOD THAT THE REPRESENTATIONS AND WARRANTIES, AND THE CONTRIBUTION, REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS SET FORTH IN Article II 2 AND ARTICLE XIII Article 12 AND SECTION 4.9 SECTIONS 5.1, 5.5, 5.7, 5.8, 5.9, 8.9, 8.10, 9.2, 9.3, 11.4 AND 14.12 SHALL BE ENFORCEABLE ONLY BY A MEMBER AGAINST ANOTHER MEMBER (WHICH, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ARE IN ALL SUCH CASES FOR THE BENEFIT OF THE MEMBERS). FOR THE AVOIDANCE OF DOUBT, THE COMPANY SHALL BE BOUND BY ARTICLE II Article 2 AND ARTICLE XIII Article 12 AND SECTION 4.9(b) SECTIONS 5.1, 5.5, 5.7, 5.8, 5.9, 8.9, 8.10, 9.2, 9.3, 11.4 AND 14.12, BUT SHALL HAVE NO RIGHT TO ENFORCE THOSE PROVISIONS AGAINST A MEMBER, SUCH RIGHTS BEING EXCLUSIVELY VESTED IN THE MEMBERS. ANY MEMBER MAY BRING A DIRECT ACTION AGAINST ANY OTHER MEMBER WITH RESPECT TO ANY OF ARTICLE II Article 2 AND Article 12 OR ARTICLE XIII OR SECTION 4.9 SECTIONS 5.1, 5.5, 5.7, 5.8, 5.9, 8.9, 8.10, 9.2, 9.3, 14.12, 11.4 AND 14.12 WITHOUT THE REQUIREMENT TO BRING A DERIVATIVE ACTION OR OTHERWISE SATISFY THE REQUIREMENTS OF SECTIONS 18-1001 THROUGH 18-1004 OF THE ACT OR OTHER SIMILAR REQUIREMENTS.

Liabilities; Indemnification. (a) No Member or Manager of the Company, or any combination of the foregoing, Company shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the Company, whether such liability or obligation arises in contract, tort or otherwise, solely by reason of being a Member or Manager of the Company or any combination of the foregoingCompany. (b) The Company shall indemnify, defend and hold harmless each Member and Manager, and their respective directors, officers, employees, agents and attorneys from and against any and all third party losses, claimsClaims, damages and liabilities arising out of or relating to (i) the Company or the Operations, including without limitation Environmental Liabilities and Continuing Obligations, (ii) any Properties assigned to a Member as an objecting Member pursuant to Section 14.1, but only to the extent arising out of or relating to Operations, including without limitation Environmental Liabilities and Continuing Obligations, conducted prior to the date of such assignment, and (iii) any reimbursements by one Member to the other Member or Manager of any of the foregoing pursuant to Section 6.56.6, except in any case of clauses (i) through (iii) above to the extent such losses, claimsClaims, damages or liabilities arise out of or result from any conduct described in any of clauses (i) through (iii) of Section 4.9(c) below. In all cases of this Section 4.9(b) and without limiting Section 6.56.6, indemnification shall be provided only out of and to the extent of the net assets of the Company and no Member shall have any personal liability whatsoever on account thereof. Notwithstanding the foregoing, the Company’s indemnification pursuant to this Section 4.9(b) as to third party claims Claims shall be only with respect to such loss, liability or damage that is not otherwise compensated by insurance carried for the benefit of the Companyinsurance. (c) Subject to Section 4.8, each Member shall indemnify, defend and hold harmless the Company, the other MemberMember and its Affiliates, and such other Member’s its and their respective directors, officers, employees, agents and attorneys from and against any and all losses, claimsClaims, damages and liabilities arising out of or relating to (i) any unauthorized act or any assumption of liability by the indemnifying Member (including in its capacity as a Manager)Member, or any of its directors, officers, employees, agents and attorneys done or undertaken, or apparently done or undertaken, on behalf of the Company or the other Member, except pursuant to the authority expressly granted herein or as otherwise agreed in writing between the Members, (ii) any breach by such Member of any of its representations or warranties set forth in this Agreement or (iii) any breach by such Member of any covenant contained in this Agreement caused by or attributable to such Member’s willful misconduct or gross negligence, including in its capacity as a Manager. (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO PERSON OR ENTITY OTHER THAN A MEMBER SHALL HAVE THE RIGHT TO ENFORCE ANY REPRESENTATION OR WARRANTY OF A MEMBER OR THE OTHER MEMBER COMPANY HEREUNDER, OR ANY OBLIGATION OF THE OTHER A MEMBER TO CONTRIBUTE CAPITAL HEREUNDER, TO FUND CONTINUING OBLIGATIONS, TO REIMBURSE OR INDEMNIFY ANY THE OTHER MEMBER HEREUNDER, AND SPECIFICALLY NEITHER THE COMPANY NOR ANY LENDER OR OTHER THIRD PARTY SHALL HAVE ANY SUCH RIGHTS, IT BEING EXPRESSLY UNDERSTOOD THAT THE REPRESENTATIONS AND WARRANTIES, AND THE CONTRIBUTION, REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS SET FORTH IN Article ARTICLES II AND ARTICLE XIII AND SECTION 4.9 SECTIONS 5.1, 5.2, 6.4, 6.6, 6.7, 9.9, 9.10, 10.2, 10.3, 12.4 AND 12.5 SHALL BE ENFORCEABLE ONLY BY A MEMBER AGAINST ANOTHER MEMBER (WHICH, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ARE IN ALL SUCH CASES FOR THE BENEFIT OF THE MEMBERS). FOR THE AVOIDANCE OF DOUBT, THE COMPANY SHALL BE BOUND BY ARTICLE ARTICLES II AND ARTICLE XIII AND SECTION 4.9(b) SECTIONS 5.1, 5.2, 6.4, 6.6, 6.7, 9.9, 9.10, 10.2, 10.3, 12.4 AND 12.5, BUT SHALL HAVE NO RIGHT TO ENFORCE THOSE PROVISIONS AGAINST A MEMBER, SUCH RIGHTS BEING EXCLUSIVELY VESTED IN THE MEMBERS. ANY MEMBER MAY BRING A DIRECT ACTION AGAINST ANY OTHER MEMBER WITH RESPECT TO ANY OF ARTICLE ARTICLES II OR ARTICLE XIII OR SECTION 4.9 SECTIONS 5.1, 5.2, 6.4, 6.6, 6.7, 9.9, 9.10, 10.2, 10.3, 12.4 OR 12.5 WITHOUT THE REQUIREMENT TO BRING A DERIVATIVE ACTION OR OTHERWISE SATISFY THE REQUIREMENTS OF SECTIONS 18-1001 THROUGH 18-1004 OF THE ACT OR OTHER SIMILAR REQUIREMENTS.