Limits of Responsibility Exculpation Indemnification Sample Clauses
Limits of Responsibility Exculpation Indemnification
Liability Exculpation and Indemnification 37 Section 10.1. Liability........................................................................... 37 Section 10.2. Exculpation......................................................................... 37 Section 10.3. Indemnification..................................................................... 38 Section 10.4. Expenses ........................................................................... 38
Exculpation; Indemnification Notwithstanding any other provisions of this Agreement, whether express or implied, or any obligation or duty at law or in equity, neither the Sole Member, nor any officers, directors, stockholders, partners, employees, affiliates, representatives or agents of the Sole Member, or any manager, officer, employee, representative or agent of the Company (individually, a “Covered Person” and, collectively, the “Covered Persons”) shall be liable to the Company or any other person for any act or omission (in relation to the Company, its property or the conduct of its business or affairs, this Agreement, any related document or any transaction or investment contemplated hereby or thereby) taken or omitted by a Covered Person in the reasonable belief that such act or omission is in or is not contrary to the best interests of the Company and is within the scope of authority granted to such Covered Person by the Company, provided such act or omission does not constitute fraud, willful misconduct, bad faith or gross negligence. To the fullest extent permitted by law, the Company shall indemnify and hold harmless each Covered Person from and against any and all civil, criminal, administrative or investigative losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings (“Claims”), in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 11 with respect to (i) any Claim with respect to which such Covered Person has engaged in fraud, willful misconduct, bad faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or part thereof) (A) was brought to enforce such Covered Person’s rights to indemnification hereunder or (B) was authorized or consented to by the Board or the Sole Member. Expenses incurred by a Covered Person in defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company as authorized by this Section 11.
Indemnification; Exculpation Borrower shall pay and protect, defend and indemnify Lender and Lender’s employees, officers, directors, shareholders, affiliates, correspondents, agents and representatives (other than Lender, collectively “Agents”) against, and hold Lender and each such Agent harmless from, all claims, actions, proceedings, liabilities, damages, losses, expenses (including, without limitation, attorneys’ fees and costs) and other amounts incurred by Lender and each such Agent, arising from (i) the matters contemplated by this Agreement or any other Loan Documents, (ii) any dispute between Borrower and a third party, or (iii) any contention that Borrower has failed to comply with any law, rule, regulation, order or directive applicable to Borrower’s business; provided, however, that this indemnification shall not apply to any of the foregoing incurred solely as the result of Lender’s or any Agent’s gross negligence or willful misconduct. This indemnification shall survive the payment and satisfaction of all of Borrower’s Obligations to Lender.
Limits on Indemnification Notwithstanding anything to the contrary contained in this Agreement: (a) The maximum aggregate amount for which Seller may be liable under this ARTICLE XII shall be limited to an amount equal to the portion of the Purchase Price actually received by Seller at the Closing pursuant to Section 3.3(a)(i), as adjusted pursuant to Section 3.4; provided, however, that the maximum aggregate amount for which Seller may be liable pursuant to Section 12.1 for any breaches of representations or warranties (other than the Fundamental Representations or the Company’s representations and warranties in Section 4.17 (Taxes)) shall be limited to the Escrow Amount; provided further that Buyer’s sole and exclusive remedy for any such breach shall be payment from the Escrow Account, to the extent any Escrow Funds remain in the Escrow Account. (b) Except for (i) the representations and warranties of (A) Seller contained in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.3 (Noncontravention) (other than with respect to the Credit Agreement), Section 5.4 (Brokers), Section 5.6 (Ownership of Member Interests) and Section 5.7 (Title), (B) the Company contained in Section 4.1 (Corporate Organization), Section 4.2 (Qualification), Section 4.3 (Capitalization of the Company), Section 4.4 (Authority Relative to This Agreement) and Section 4.5 (Noncontravention) (other than with respect to the Credit Agreement), (collectively, such representations and warranties in (A) and (B), the “Fundamental Representations”) and (C) Buyer contained in Section 6.1 (Organization and Good Standing), Section 6.2 (Authorization of Agreement), Section 6.3 (Noncontravention) and Section 6.9 (Brokers), each of which representations and warranties shall survive the Closing indefinitely and (ii) the representations and warranties of the Company contained in Section 4.17 (Taxes), which shall survive the Closing for the statute of limitations applicable to such Taxes plus 60 days, all other representations and warranties of Seller, the Company and Buyer shall survive the Closing for a period of six (6) months after the Closing Date (each period of survival set forth in this Section 12.4(b), a “Survival Period”). (c) None of the Company, Seller, Buyer, or any officer, director, employee, Affiliate or Related Party of the Company, Seller or Buyer shall have any liability whatsoever (whether pursuant to this Agreement or otherwise) with respect to any representation or warranty and any claims arising therefrom or related thereto after the expiration of the Survival Period for such representation or warranty; provided, that if a claim for indemnification is given in writing by the Indemnified Party to the Indemnifying Party before expiration of the applicable Survival Period, such claim shall survive until it is satisfied. (d) Notwithstanding anything to the contrary herein, Seller shall not have any obligation to defend, indemnify and hold harmless Buyer (or its Affiliates, and the officers, managers, directors, employees and agents thereof) with respect to any claims asserted by Buyer pursuant to Section 12.1 for a breach of a representation or warranty unless the aggregate of Losses (determined without regard to any qualifications of knowledge, materiality or Material Adverse Effect contained therein) with respect to such claims exceed the Deductible, and in the event the value of Losses pursuant to such claims exceed the Deductible, only the value of Losses in excess of the Deductible shall be considered in applying Section 12.1 to such claims; provided, however, that the Deductible shall not apply with respect to any claims asserted by Buyer for a breach of the Fundamental Representations or the representations and warranties of the Company contained in Section 4.17 (Taxes). (e) Any payments made to Seller, the Company or Buyer pursuant to this ARTICLE XII shall constitute an adjustment of the Purchase Price for Tax purposes and shall be treated as such by Buyer and Seller on their Tax Returns.
Exculpation and Indemnification (a) No Member, Manager, Officer, employee or agent of the Company and no affiliate, stockholder, officer, director, employee or agent of the Member (collectively, the “Covered Persons”) shall be liable to the Company 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 by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct. (b) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section shall be provided out of and to the extent of Company assets only, and the Member shall have no personal liability on account thereof. (c) To the fullest extent permitted by applicable law, expenses (including reasonable legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section. (d) A Covered Person 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 matters the Covered Person reasonably believes are within such other person or entity’s professional or expert competence and who has 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 Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person. (f) The foregoing provisions of this Section shall survive any termination of this Agreement.