JAH » Topics » Indemnification

This excerpt taken from the JAH DEF 14A filed Apr 9, 2009.

Indemnification

We indemnify our directors and elected officers to the fullest extent permitted by law so that they will be free from undue concern about personal liability in connection with their service to the Company. Our Restated Certificate of Incorporation, as amended, and Amended and Restated Bylaws, as amended, also provide that we will indemnify any of our directors and officers against any and all costs, expenses or liabilities incurred by them by reason of having been a director or officer.

This excerpt taken from the JAH DEF 14A filed Apr 28, 2008.

Indemnification

We indemnify our directors and elected officers to the fullest extent permitted by law so that they will be free from undue concern about personal liability in connection with their service to the Company. Our Restated Certificate of Incorporation, as amended, and Amended and Restated Bylaws also provide that we will indemnify any of our directors and officers against any and all costs, expenses or liabilities incurred by them by reason of having been a director or officer.

This excerpt taken from the JAH 8-K filed Dec 19, 2007.

Indemnification

Section A. Indemnification. The corporation shall indemnify each person who is or was a director, officer or employee of the corporation, or of any other corporation, partnership, joint venture, trust or other enterprise which he is serving or served in any capacity at the request of the corporation, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, actions, suit or proceeding (whether actual or threatened, brought by or in the right of the corporation or such other corporation, partnership, joint venture, trust or other enterprise, or otherwise, civil, criminal, administrative, investigative, or in connection with an appeal relating thereto), in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of the corporation or of such other corporation, partnership, joint venture, trust or other enterprise or by reason of any past or future action taken or not taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, to the fullest extent permitted by the DGCL as the same now exists or may hereafter be amended (but in the case of any such amendment only to the extent that such amendment permits the corporation to provide broader indemnification rights than the DGCL permitted the corporation to provide prior to such amendment).

Any indemnification pursuant to this Article Seven shall be (unless ordered by a court) paid by the corporation within sixty (60) days of such request unless the corporation shall have determined by (a) the board of directors, acting by a quorum consisting of directors who are not parties to or who have been wholly successful with respect to such claim, action, suit or proceeding, (b) outside legal counsel engaged by the corporation (who may be regular counsel of the corporation) and who delivers to the corporation its written opinion, or (c) a court of competent jurisdiction, that indemnification is not proper under the circumstances because such person has not met the necessary standard of conduct in accordance with DGCL; provided, however, that following a Change in Control of the Corporation, with respect to all matters thereafter arising out of acts, omissions or events prior to the Change in Control of the Corporation concerning the rights of any person seeking indemnification hereunder, such determination shall be made by special independent counsel selected by such person and approved by the corporation (which approval shall not be unreasonably withheld), which counsel has not otherwise performed services (other than in connection with similar matters) within the five years preceding its engagement to render such opinion for such person or for the corporation or any affiliates (as such term is defined in Rule 405 under the Securities Act of 1933, as amended) of the corporation (whether or not they were affiliates when services were so performed) (“Independent Counsel”). Unless such person has theretofore selected Independent Counsel pursuant to this Article Seven, Section A and such Independent Counsel has been approved by the corporation, legal counsel approved by a resolution or resolutions of the board of directors prior to a Change in Control of the Corporation shall be deemed to have been approved by the Corporation as required. Such Independent Counsel shall determine as promptly as practicable whether and to what extent such person would be permitted to be indemnified

 

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under applicable law and shall render its written opinion to the Corporation and such person to such effect; provided that such independent counsel shall find that the standard for indemnification has been met by such person unless indemnification is clearly precluded under these Bylaws or the DGCL. The corporation agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such Independent Counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Article Seven or its engagement pursuant hereto.

For purposes of this Article Seven, a “Change in Control of the Corporation” shall be deemed to have occurred upon the first to occur of the following events:

(i) any “person,” as such term is used in Sections 13 (d) and 14(d) of the Exchange Act (other than the corporation, any trustee or other fiduciary holding securities under an employee benefit plan of the corporation or any subsidiary of the corporation, or any corporation owned, directly or indirectly, by the stockholders of the corporation in substantially the same proportions as their ownership of stock of the corporation), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the corporation representing 30 percent or more of the combined voting power of the corporation’s then outstanding securities;

(ii) at any time during any period of two consecutive years, individuals, who at the beginning of such period constitute the board of directors, and any new director (other than a director designated by a person who has entered into an agreement with the corporation to effect a transaction described in subsection (i), (iii) or (iv) of this Section 7.4) whose election by the board of directors or nomination for election by the corporation’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors at the beginning of the period or whose election or nomination for election was previously so approved cease for any reason to constitute at least a majority thereof;

(iii) the stockholders of the corporation approve a merger or consolidation of the corporation with any other corporation, other than (1) a merger or consolidation which would result in the voting securities of the corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50 percent of the combined voting power of the voting securities of the corporation or such surviving entity outstanding immediately after such merger or consolidation or (2) a merger or consolidation effected to implement a recapitalization of the corporation (or similar transaction) in which no person acquires 50 percent or more of the combined voting power of the corporation’s then outstanding securities; or

(iv) the stockholders of the corporation approve a plan of complete liquidation of the corporation or an agreement for the sale or disposition by the corporation of all or substantially all of the corporation’s assets.

 

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Section B. Expenses. Expenses, including attorneys’ fees, incurred by a person referred to in Section A of this Article Seven in defending or otherwise being involved in a proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking (the “Undertaking”) by or on behalf of such person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation.

Section C. Right of Claimant to Bring Suit. If a claim for indemnification is not paid in full by the corporation within sixty (60) days after a written claim has been received by the corporation or if expenses pursuant to Section B hereof have not been advanced within ten (10) days after a written request for such advancement accompanied by the Undertaking has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim or the advancement of expenses. (If the claimant is successful, in whole or in part, in such suit or any other suit to enforce a right for expenses or indemnification against the corporation or any other party under any other agreement, such claimant shall also be entitled to be paid the reasonable expense of prosecuting such claim.) It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required Undertaking has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the DGCL for the corporation to indemnify the claimant for the amount claimed. After a Change in Control, the burden of proving such defense shall be on the corporation, and any determination by the corporation (including its board of directors, independent legal counsel or its stockholders) that the claimant had not met the applicable standard of conduct required under the DGCL shall not be a defense to the action nor create a presumption that claimant had not met such applicable standard of conduct.

Section D. Non-Exclusivity of Rights. The rights conferred on any person by this Article shall not be exclusive of any other right which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement vote of stockholders or disinterested directors or otherwise. The board of directors shall have the authority, by resolution, to provide for such other indemnification of directors, officers, employees or agents as it shall deem appropriate.

Section E. Insurance. The corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expenses, liabilities or losses, whether or not the corporation would have the power to indemnify such person against such expenses, liabilities or losses under the DGCL.

Section F. Enforceability. The provisions of this Article Seven shall be applicable to all proceedings commenced after its adoption, whether such arise out of events, acts, omissions or circumstances which occurred or existed prior or subsequent to such adoption, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person.

 

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This Article Seven shall be deemed to grant each person who, at any time that this Article Seven is in effect, serves or agrees to serve in any capacity which entitles him to indemnification hereunder rights against the corporation to enforce the provisions of this Article Seven, and any repeal or other modification of this Article or any repeal or modification of the DGCL or any other applicable law shall not limit any rights of indemnification then existing or arising out of events, acts, omissions, circumstances occurring or existing prior to such repeal or modification, including, without limitation, the right to indemnification for proceedings commenced after such repeal or modification to enforce this Article with regard to acts, omissions, events or circumstances occurring or existing prior to such repeal or modification.

Section G. Severability. If this Article Seven or any portion hereof shall invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director and officer of the corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the corporation, to the full extent permitted by any applicable portion of this Article Seven that shall not have been invalidated and to the full extent permitted by applicable law.

 

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These excerpts taken from the JAH 8-K filed Aug 14, 2007.

INDEMNIFICATION

Section 6.1 Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator, with respect to itself, hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each, an “Originator Indemnified Party”) from and against any and all damages, losses, claims, Covered Taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Originator Indemnified Amounts”) awarded against or incurred by any of them arising out of any of the following:

(i) any representation or warranty made by such Originator (or any officers of such Originator) under or in connection with its Purchase and Contribution Report, this Agreement, any other Transaction Document or any other information or report delivered by or on behalf of such Originator pursuant hereto or thereto for which Buyer has not received a Purchase Price Credit in accordance with this Agreement that shall have been false or incorrect when made or deemed made;

(ii) the failure by such Originator, to comply with any applicable law, rule or regulation with respect to any Receivable originated by it or any Contract related thereto, or the nonconformity of any such Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;

 

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(iii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document to which such Originator is a party;

(iv) any products liability, personal injury or damage, suit or other similar claim arising out of or in connection with goods, insurance or services that are the subject of any Contract or any Receivable of such Originator;

(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or failure to pay due to financial inability) of the Obligor to the payment of any Receivable of such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;

(vi) the commingling of Collections of Receivables of such Originator at any time with other funds;

(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document to which such Originator is a party, the transactions contemplated hereby, such Originator’s use of the proceeds of any Purchase from it hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Originator Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;

(viii) any inability to litigate any claim against any Obligor in respect of any Receivable of such Originator as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;

(ix) any failure of such Originator to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables of such Originator and the associated Collections, and all of such Originator’s right, title and interest in the Related Security associated with such Receivables, in each case, free and clear of any Adverse Claim;

(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable of such Originator, the Related Security and Collections with respect thereto in accordance with provisions hereof, and the proceeds of any thereof, whether at the time of any Purchase from such Originator hereunder or at any subsequent time;

 

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(xi) any Purchase from such Originator hereunder shall be voided by any Person under statutory provisions or common law or equitable action; or

(xii) the failure of any Eligible Receivable of such Originator reflected as an Eligible Receivable on any Purchase and Contribution Report prepared by such Originator to be an Eligible Receivable at the time acquired by Buyer; and/or

excluding, however, (a) Originator Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that Originator Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Originator Indemnified Party seeking indemnification; and (b) Excluded Taxes. Nothing in this Section 6.1 shall limit the liability of any Originator or limit the recourse of Buyer to each Originator for amounts otherwise specifically provided to be paid by any Originator under the terms of this Agreement.

Anything contained in this Section 6.1 to the contrary notwithstanding: (1) the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Receivables conveyed hereunder, and (2) nothing in this Section 6.1 shall require any Originator to indemnify an Originator Indemnified Party for Receivables which are not collected, not paid or are otherwise uncollected.

Section 6.2 Other Costs and Expenses. Each Originator agrees to pay to Buyer, on demand, all reasonable out-of-pocket costs and expenses in connection with (a) the preparation, execution and delivery of this Agreement and the other documents to be delivered hereunder, (b) the preparation, execution and delivery of any amendment hereto or waiver hereof requested by any Originator, and (c) any and all costs and expenses of Buyer, if any, including reasonable counsel fees and expenses, in connection with the enforcement of this Agreement and the other documents delivered hereunder.

Section 6.3 Taxes. All payments by an Originator to or for the account of Buyer (or any of its assigns) hereunder or under any other Transaction Document to which such Originator is a party shall be made free and clear of and without deduction for any and all Covered Taxes. If an Originator shall be required by law to deduct any Covered Taxes from or in respect of any sum payable hereunder to Buyer (or any of its assigns), (a) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 6.3), Buyer (or such assign, as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (b) such Originator shall make such deductions, (c) such Originator shall pay the full amount deducted to the relevant authority in accordance with applicable law and (d) such Originator shall furnish to Buyer (and to the Administrator, as the ultimate assignee) the original copy of a receipt evidencing payment thereof within 30 days after such payment is made.

 

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ARTICLE VII

INDEMNIFICATION

Section 14.1 General Indemnity of the Borrower. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify the Servicer and each of the Administrator, the Lender, Support Providers

 

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and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and reasonable related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated thereby, any commingling of funds (whether or not permitted hereunder), or the use of proceeds therefrom by the Borrower, including (without limitation) in respect of the funding of any Loan or in respect of any Receivable; excluding, however, (a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, and (b) Excluded Taxes.

Section 14.2 Indemnity of the Servicer. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Servicer, hereby agrees to indemnify each Indemnified Party forthwith on demand, from and against any and all Indemnified Amounts awarded against or incurred by any of them arising from, or related to, the gross negligence or willful misconduct of the Servicer, the inaccuracy of any representation or warranty of the Servicer, or the failure of the Servicer to perform its obligations under any Transaction Document; excluding, however, (a) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any Indemnified Party, (b) Indemnified Amounts to the extent solely due to non-payment by any Obligor on account of the insolvency, bankruptcy, lack of creditworthiness, or financial inability to pay, and (c) Excluded Taxes. Anything contained in this Section 14.2 to the contrary notwithstanding: (1) the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Receivables, and (2) nothing in this Section 14.2 shall be deemed to constitute a guarantee of principal or interest on the Loans or require the Servicer to indemnify any Indemnified Party for, and “Indemnified Amounts” shall not include the amount of any Receivables which are not collected, not paid or are otherwise uncollected on account of the insolvency, bankruptcy, lack of creditworthiness or financial inability to pay of the applicable Obligor.

This excerpt taken from the JAH 8-K filed Apr 12, 2007.

INDEMNIFICATION

7.1. Survival of the Representations, Warranties and Covenants; Time Limits on Indemnification Obligations. Notwithstanding the participation of any Party in the Closing, the representations, warranties and covenants will survive the Closing in accordance with the following: the representations and warranties of Seller and the Company contained in, or arising out of, this Agreement shall survive the Closing hereunder until April 6, 2008; provided, however, that (A) the representation and warranty in Section 3.10(a) (Taxes) shall survive until the earlier of (i) the sixth (6th) anniversary of the date hereof and (ii) sixty (60) days following the expiration of the applicable statute of limitations, (B) the representation and warranty in Section 3.19 (Environmental Compliance and Conditions) shall survive until the third (3rd) anniversary of the date hereof, (C) the representation and warranty in Section 3.29 shall survive for one hundred twenty (120) days after the Closing Date and (D) the representations and warranties in Section 3.1 (Organization and Qualification), Section 3.2 (Authorization; Enforceability), Section 3.3 (Organizational Documents), Section 3.4 (Capitalization), Section 4.1 (Authorization; Enforceability) and Section 4.2 (Title to Shares) shall survive indefinitely. Those Sections referenced in (B), (C) and (D) hereof shall be collectively referred to herein as the “Fundamental Representations”. All Post-Closing Covenants of Seller and the Company will survive the Closing in accordance with their terms.

7.2. Survival of Buyer’s Representations and Warranties; Time Limits on Indemnification Obligations. All of the representations and warranties of Buyer contained in, or arising out of, this Agreement shall survive the Closing hereunder until April 6, 2008; provided, however, that the representations and warranties in Section 5.1 (Organization and Qualification) and Section 5.2 (Authorization; Enforceability) shall survive indefinitely. All Post-Closing Covenants of Buyer will survive the Closing in accordance with their terms.

7.3. Indemnification by Seller and the Members Relating to the Company and Seller. From and after the Closing, Seller shall, and the Members shall, severally, in the proportions set forth on Exhibit 7.3, and not jointly, in accordance with, and subject to the terms, conditions and limitations set forth in this Article VII, indemnify, defend and save Buyer and its officers, directors, employees, agents, representatives, successors and permitted assigns (each, a “Buyer Indemnified Party”) harmless from and against any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs and expenses (including reasonable attorneys’ fees) (hereinafter, a “Loss” or the “Losses”) sustained or incurred by any Buyer Indemnified Party resulting from:

 

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(a) any breach of a representation or warranty made by the Company in Article III or Seller in Article IV of this Agreement (in each case disregarding, for purposes of determining the inaccuracy or breach thereof and the amount of Losses relating thereto, any qualification as to materiality or Material Adverse Effect contained in any such representation or warranty other than the representations and warranties set forth in Section 3.8(c) and Section 3.9); provided, however, that such Buyer Indemnified Party shall have asserted its claim for indemnification in writing prior to the expiration of any applicable survival period specified in Section 7.1;

(b) any withholding Taxes payable as a result of the vesting of any Equity Securities of Seller in the hands of any current or former employee of the Company or any Company Subsidiary;

(c) any breach of a Post-Closing Covenant made by Seller in this Agreement; or

(d) liability for any Pre-January 1, 2006 Taxes.

provided that no indemnification payment shall be made to the Buyer Indemnified Parties by Seller and/or Members under Sections 7.3(a) until the amounts that the Buyer Indemnified Party would otherwise be entitled to receive under this Agreement aggregate at least $2,000,000 (“Indemnification Threshold”), it being understood and agreed that at such time as Losses exceed the Indemnification Threshold, Seller and Members shall be obligated to indemnify the Buyer Indemnified Parties for the entire amount of such Losses without regard to the Indemnification Threshold; and provided further that Seller and Members shall not have any aggregate liability under Section 7.3(a) in excess of $60,000,000 (the “Cap”). Notwithstanding the foregoing, neither the Indemnification Threshold nor the Cap shall apply to (i) any claim for breach of Fundamental Representations (other than the representation and warranty set forth in Section 3.29), (ii) any claim for Losses resulting from any Pre-January 1, 2006 Taxes or (iii) any claim resulting from a breach of the representation and warranty set forth in Section 3.29(a) if such breach relates to Indebtedness for borrowed money. All indemnification payments under this Section 7.3 shall be deemed adjustments to the Purchase Price set forth in Section 1.2 above. Notwithstanding the foregoing, any payment owed pursuant to Section 7.3 shall be reduced as provided in Section 6.1(a). Nothing in this Agreement (including this Section 7.3) shall limit or restrict any of the Buyer Indemnified Parties’ rights to maintain or recover any amounts at any time in connection with any action or claim based upon fraud or deceit made by Seller or any Affiliate of Seller.

7.4. Indemnification by Buyer. From and after the Closing, Buyer shall indemnify, defend and save Seller and the Members (“Seller Indemnified Party”) harmless from and against any and all Losses sustained or incurred by Seller Indemnified Party resulting from:

(a) any breach of a representation or warranty made by Buyer in Article V (in each case disregarding, for purposes of determining the inaccuracy or breach thereof and the amount of Losses relating thereto, any qualification as to materiality or Material Adverse Effect contained in any such representation or warranty); provided, however, that the Seller Indemnified Party shall have asserted its claim for indemnification in writing with reasonable supporting details promptly upon discovering any such breach, and in any event, before the expiration of any applicable survival period specified in Section 7.2; or

 

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(b) any breach of a Post-Closing Covenant made by Buyer, the Company or any Company Subsidiary in this Agreement.

7.5. Indemnification Procedures.

(a) Third Party Claims. Subject to Section 6.3(a), in the event that subsequent to the Closing, any Person that is or may be entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim, issuance of any order or the commencement of any action or proceeding by any Person who is not a Party or an Affiliate of a Party, including, any domestic or foreign court or Governmental Authority (a “Third Party Claim”), against such Indemnified Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), such Indemnified Party shall give written notice thereof, together with a statement of any available information regarding such claim, to such Indemnifying Party within ten (10) days after learning of such claim (but the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnifying Party’s failure to give such notice). The Indemnifying Party shall have the right upon written notice to the Indemnified Party (the “Defense Notice”), within thirty (30) days after receipt from the Indemnified Party of notice of such claim, to conduct, at its expense, and with counsel reasonably satisfactory to the Indemnified Party, the defense against such claim in its own name, or if necessary in the name of the Indemnified Party unless (i) the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim. In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, and the Indemnified Party shall have the right, at its expense, to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party shall not enter into any settlement of any Third Party Claim or cease to defend against such claim, unless (i) there is no finding or admission of any violation of Legal Requirements, and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (c) the Indemnifying Party will have no liability or future additional expense with respect to any compromise or settlement of such claims effected without its consent.

Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Party and at its own

 

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expense, assume the exclusive right to defend, compromise, or settle such Third Party Claim, but the Indemnifying Party will not be bound by any determination of a Third Party Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).

(b) Other Claims. A claim for indemnification for any matter not involving a third-party claim may be asserted by notice to the party from whom indemnification is sought.

7.6. Payment of Claims. With regard to any and all claims for which indemnification is payable hereunder, such indemnification shall be paid by the Indemnifying Party upon the earliest to occur of (i) the entry of a judgment against the Indemnified Party and the expiration of any applicable appeal period, or if earlier, five (5) Business Days prior to the date that the judgment creditor has the right to execute the judgment, (ii) the entry of an unappealable judgment or final appellate decision against the Indemnified Party or (iii) a settlement of the claim. The earliest to occur of clauses (i), (ii) or (iii) above is referred to herein as a “Final Determination”. All indemnification amounts shall be paid promptly by the Indemnifying Party upon demand by the Indemnified Party following Final Determination; provided that Seller (or any Member to the extent that such Member has been transferred a portion of the Buyer Note but only with respect to the portion of the Buyer Note held by such Member or its Affiliates) may elect to pay all or a portion of any Loss by (i) reducing the amount of any accrued and unpaid interest on the Buyer Note, if any, and then by (ii) reducing the principal amount of the Buyer Note (or in the case of any election by a Member, the principal amount of the Buyer Note held by such Member and its Affiliates) such that the aggregate amount of such reductions equals the amount of all or a portion of the Loss owed by Seller (or, in the case of an election by a member with respect to a Buyer Note held by it, owed by such Member or its Affiliates) to Buyer. Any remaining amount owed by Seller or the Members will thereafter be paid by Seller or such Members, on a several basis, by wire transfer of immediately available funds to an account designated in writing by the Buyer Indemnified Parties.

7.7. Certain Limitations.

(a) Buyer shall use its commercially reasonable efforts to recover insurance proceeds that may be available to it or its Affiliates as a result of the matter giving rise to any indemnification claim of Buyer; provided that such efforts shall not be a condition precedent to the ability of Buyer to seek indemnification hereunder and provided further that Buyer shall have no obligation to contest or otherwise enter into any Proceeding. If Buyer or any Affiliate receives any insurance proceeds or third party recovery as a result of the matter giving rise to any indemnification claim of Buyer prior to the date upon which Seller is given notice of such claim, then Seller’s indemnification obligation with respect to such claim shall be reduced by the amount of any such insurance proceeds or third party recovery actually received by Buyer or any Affiliate. If Buyer or any Affiliate receives any insurance proceeds or third party recovery as a result of the matter giving rise to any indemnification claim of Buyer or any Affiliate against Seller after Seller has paid such indemnification claim to Buyer or any Affiliate, then such Buyer or such Affiliate shall promptly turn over any such insurance proceeds received to Seller to the extent of the payments made by Seller to Buyer or any Affiliate on the claim.

 

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(b) Notwithstanding anything contained in this Agreement to the contrary, Losses as used herein shall not include and in no event shall any Indemnifying Party be liable to any Indemnified Party for, any consequential and punitive damages or any penalties or punitive fees.

This excerpt taken from the JAH DEF 14A filed Mar 30, 2007.

Indemnification

We indemnify our directors and elected officers to the fullest extent permitted by law so that they will be free from undue concern about personal liability in connection with their service to the Company. Our restated certificate of incorporation and bylaws also provide that we will indemnify any of our directors and officers, against any and all costs, expenses or liabilities incurred by them by reason of having been a director or officer.

These excerpts taken from the JAH 8-K filed Aug 30, 2006.

INDEMNIFICATION

Section 6.1 Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator, with respect to itself, hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each, an “Originator Indemnified Party”) from and against any and all damages, losses, claims, Covered Taxes, liabilities, costs, expenses and for all other amounts

 

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payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Originator Indemnified Amounts”) awarded against or incurred by any of them arising out of any of the following:

(i) any representation or warranty made by such Originator (or any officers of such Originator) under or in connection with its Purchase and Contribution Report, this Agreement, any other Transaction Document or any other information or report delivered by or on behalf of such Originator pursuant hereto or thereto for which Buyer has not received a Purchase Price Credit in accordance with this Agreement that shall have been false or incorrect when made or deemed made;

(ii) the failure by such Originator, to comply with any applicable law, rule or regulation with respect to any Receivable originated by it or any Contract related thereto, or the nonconformity of any such Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;

(iii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document to which such Originator is a party;

(iv) any products liability, personal injury or damage, suit or other similar claim arising out of or in connection with goods, insurance or services that are the subject of any Contract or any Receivable of such Originator;

(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or failure to pay due to financial inability) of the Obligor to the payment of any Receivable of such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;

(vi) the commingling of Collections of Receivables of such Originator at any time with other funds;

(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document to which such Originator is a party, the transactions contemplated hereby, such Originator’s use of the proceeds of any Purchase from it hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Originator Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;

 

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(viii) any inability to litigate any claim against any Obligor in respect of any Receivable of such Originator as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;

(ix) any failure of such Originator to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables of such Originator and the associated Collections, and all of such Originator’s right, title and interest in the Related Security associated with such Receivables, in each case, free and clear of any Adverse Claim;

(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable of such Originator, the Related Security and Collections with respect thereto in accordance with provisions hereof, and the proceeds of any thereof, whether at the time of any Purchase from such Originator hereunder or at any subsequent time;

(xi) any Purchase from such Originator hereunder shall be voided by any Person under statutory provisions or common law or equitable action; or

(xii) the failure of any Eligible Receivable of such Originator reflected as an Eligible Receivable on any Purchase and Contribution Report prepared by such Originator to be an Eligible Receivable at the time acquired by Buyer; and/or

excluding, however, (a) Originator Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that Originator Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Originator Indemnified Party seeking indemnification; and (b) Excluded Taxes. Nothing in this Section 6.1 shall limit the liability of any Originator or limit the recourse of Buyer to each Originator for amounts otherwise specifically provided to be paid by any Originator under the terms of this Agreement.

Anything contained in this Section 6.1 to the contrary notwithstanding: (1) the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Receivables conveyed hereunder, and (2) nothing in this Section 6.1 shall require any Originator to indemnify an Originator Indemnified Party for Receivables which are not collected, not paid or are otherwise uncollected.

Section 6.2 Other Costs and Expenses. Each Originator agrees to pay to Buyer, on demand, all reasonable out-of-pocket costs and expenses in connection with (a) the preparation, execution and delivery of this Agreement and the other documents to be delivered hereunder, (b) the preparation, execution and delivery of any amendment hereto or waiver hereof requested by any Originator, and (c) any and all costs and expenses of Buyer, if any, including reasonable counsel fees and expenses, in connection with the enforcement of this Agreement and the other documents delivered hereunder.

 

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Section 6.3 Taxes. All payments by an Originator to or for the account of Buyer (or any of its assigns) hereunder or under any other Transaction Document to which such Originator is a party shall be made free and clear of and without deduction for any and all Covered Taxes. If an Originator shall be required by law to deduct any Covered Taxes from or in respect of any sum payable hereunder to Buyer (or any of its assigns), (a) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 6.3), Buyer (or such assign, as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (b) such Originator shall make such deductions, (c) such Originator shall pay the full amount deducted to the relevant authority in accordance with applicable law and (d) such Originator shall furnish to Buyer (and to the Administrator, as the ultimate assignee) the original copy of a receipt evidencing payment thereof within 30 days after such payment is made.

ARTICLE VII

INDEMNIFICATION

Section 14.1 General Indemnity of the Borrower. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Borrower hereby agrees to indemnify the Servicer and each of the Administrator, the Lender, Support Providers

 

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and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and reasonable related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated thereby, any commingling of funds (whether or not permitted hereunder), or the use of proceeds therefrom by the Borrower, including (without limitation) in respect of the funding of any Loan or in respect of any Receivable; excluding, however, (a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, and (b) Excluded Taxes.

Section 14.2 Indemnity of the Servicer. Without limiting any other rights which any such Person may have hereunder or under applicable law, the Servicer, hereby agrees to indemnify each Indemnified Party forthwith on demand, from and against any and all Indemnified Amounts awarded against or incurred by any of them arising from, or related to, the gross negligence or willful misconduct of the Servicer, the inaccuracy of any representation or warranty of the Servicer, or the failure of the Servicer to perform its obligations under any Transaction Document; excluding, however, (a) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any Indemnified Party, (b) Indemnified Amounts to the extent solely due to non-payment by any Obligor on account of the insolvency, bankruptcy, lack of creditworthiness, or financial inability to pay, and (c) Excluded Taxes. Anything contained in this Section 14.2 to the contrary notwithstanding: (1) the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Receivables, and (2) nothing in this Section 14.2 shall be deemed to constitute a guarantee of principal or interest on the Loans or require the Servicer to indemnify any Indemnified Party for, and “Indemnified Amounts” shall not include the amount of any Receivables which are not collected, not paid or are otherwise uncollected on account of the insolvency, bankruptcy, lack of creditworthiness or financial inability to pay of the applicable Obligor.

This excerpt taken from the JAH DEF 14A filed Apr 19, 2006.

Indemnification

We indemnify our directors and elected officers to the fullest extent permitted by law so that they will be free from undue concern about personal liability in connection with their service to the Company. This is required under our Bylaws.

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