Common use of Defense of Certain Proceedings Clause in Contracts

Defense of Certain Proceedings. As soon as practicable after receipt by any Indemnitee of notice of the commencement of any Proceeding, such Indemnitee shall, if a claim with respect thereto may be made against the Company under Section 8.2, notify the Company in writing of the commencement of such Proceeding; provided, however, that failure so to notify the Company shall not relieve the Company from any liability under Section 8.2 unless the Company shall have been prejudiced by such failure, or from any other liability which it may have to such Indemnitee other than under Section 8.2. With respect to any Proceeding, the Company may participate therein at its own expense and, except as otherwise provided herein, to the extent that it desires the Company, jointly with any other indemnifying party, shall be entitled to assume the defense of Indemnitee in the Proceeding, with counsel selected by the Company to the reasonable satisfaction of Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense of Indemnitee in the Proceeding, the Company shall not be liable to such Indemnitee under Section 8.2 for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense of Indemnitee in the Proceeding other than as otherwise provided herein. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding where the Company has assumed the defense of the Indemnitee, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of Indemnitee in the Proceeding shall be at the expense of such Indemnitee unless (i) the employment of counsel by such Indemnitee shall have been authorized by the Company; or (ii) such Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and such Indemnitee in the conduct of the defense of the Proceeding or that the defense conducted by the Company may not be adequate; or (iii) the Company shall not in fact have employed counsel to assume the defense in such Proceeding. The Company shall not be entitled to assume the defense of any Proceeding brought against an Indemnitee by or on behalf of the Company.

Defense of Certain Proceedings. As soon as practicable after Promptly upon receipt by the Agent, the Collateral Agent or any Indemnitee Lender of notice of the commencement of any Proceeding, such Indemnitee shall, if a claim with action or proceeding seeking any recovery described in Section 3.3 hereof or challenging the validity or priority of any lien securing the Debt (other than in respect thereto may be made against the Company under Section 8.2, notify the Company in writing of the commencement BCD Pledged Notes), the Agent, the Collateral Agent or such Lender, as in the case may be, will notify PNM of such Proceeding; providedcommencement (a "commencement Notice"). PNM will be entitled to participate in the defense of any such action or proceeding, however, that failure so to notify the Company shall not relieve the Company from any liability under Section 8.2 unless the Company shall have been prejudiced by such failure, or from any other liability which it may have to such Indemnitee other than under Section 8.2. With respect to any Proceeding, the Company may participate therein at its own expense and, except as otherwise provided herein, to the extent that it desires may elect by written notice delivered to the CompanyAgent, jointly with any other indemnifying partythe Collateral Agent and the affected Lenders promptly after receiving a Commencement Notice, shall be entitled to assume the defense thereof. In any case, counsel for the Agent, the Collateral Agent, the affected Lenders and, if it chooses to participate in or assume the defense, PNM will be a single law firm selected by the Collateral Agent after consultation with the affected Lenders, such counsel to be reasonably satisfactory to PNM, and PNM shall pay the reasonable fees and expenses of Indemnitee such counsel; provided, however, (i) if PNM shall, within ten days after receiving a Commencement Notice, give notice to the Collateral Agent that PNM has determined not to participate in or assume the Proceedingdefense of any such action or proceeding, the cost of any such defense by the Agent, the Collateral Agent or the Lenders shall not be at the expense of PNM and (ii) if the Collateral Agent after consultation with the Lenders reasonably concludes that there may be legal defenses available to the Agent, the Collateral Agent or the Lenders which are different from or additional to those available to PNM, or that it would be inappropriate for the counsel selected by the Company Collateral Agent to represent, in respect of a particular legal or factual issue or otherwise, both PNM, on the one hand, and the Agent, the Collateral Agent and the Lenders, on the other, the Collateral may after consultation with the Lenders select additional, separate counsel, but not at the expense of PNM, to represent the Agent, the Collateral Agent and the affected Lenders. The Agent, the Collateral Agent and the Lenders will, to the reasonable satisfaction extent reasonably requested by PNM and at the expense of Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense of Indemnitee PNM, cooperate in the Proceeding, the Company shall not be liable to such Indemnitee under Section 8.2 for any legal or other expenses subsequently incurred by such Indemnitee good faith with PNM in connection with the defense of Indemnitee any such action or proceeding but, in the Proceeding other than as otherwise provided hereinabsence of any such reasonable request, will not be required to participate in any such defense. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding where the Company has assumed the defense None of the Indemniteeforegoing shall prevent PNM, but the fees and expenses of such counsel incurred after notice Agent, the Collateral Agent or any Lender from the Company of retaining counsel, at its assumption of the defense of Indemnitee in the Proceeding shall be at the expense of such Indemnitee unless (i) the employment of counsel by such Indemnitee shall have been authorized by the Company; or (ii) such Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and such Indemnitee in the conduct of the defense of the Proceeding or that the defense conducted by the Company may not be adequate; or (iii) the Company shall not in fact have employed counsel own expense, to assume the defense in such Proceeding. The Company shall not be entitled to assume the defense of any Proceeding brought against an Indemnitee by or on behalf of the Companyrepresent its individual interests.

Defense of Certain Proceedings. As soon as practicable after receipt by any Indemnitee of notice of In the commencement event the Company or the Partnership shall be obligated under this Agreement to pay the Expenses of any Proceeding, such Indemnitee shall, if a claim with respect thereto may be made Proceeding against the Company under Section 8.2, notify Indemnitee in which the Company in writing of or the commencement of such Proceeding; provided, however, that failure so to notify Partnership is a co-defendant with the Company shall not relieve the Company from any liability under Section 8.2 unless the Company shall have been prejudiced by such failure, or from any other liability which it may have to such Indemnitee other than under Section 8.2. With respect to any ProceedingIndemnitee, the Company may participate therein at its own expense and, except as otherwise provided herein, to the extent that it desires the Company, jointly with any other indemnifying party, Partnership shall be entitled to assume the defense of Indemnitee in the such Proceeding, with counsel selected approved by the Indemnitee, which approval shall not be unreasonably withheld, conditioned or delayed, upon the delivery to the Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the Company or the Partnership, the Indemnitee shall nevertheless be entitled to employ or continue to employ his or her own counsel in such Proceeding. Employment of such counsel by the Indemnitee shall be at the cost and expense of the Company and the Partnership unless and until the Company or the Partnership shall have demonstrated to the reasonable satisfaction of Indemnitee. After notice from the Company to Indemnitee of its election to assume and the defense of Indemnitee in the Proceeding, the Company shall not be liable to such Indemnitee under Section 8.2 for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense of Indemnitee in the Proceeding other than as otherwise provided herein. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding where the Company has assumed the defense of the Indemnitee, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of Indemnitee in the Proceeding shall be at the expense of such Indemnitee unless (i) the employment of counsel by such Indemnitee shall have been authorized by the Company; or (ii) such Indemnitee shall have reasonably concluded that there may be a is complete identity of issues and defenses and no conflict of interest between the Company Company, the Partnership and such the Indemnitee in such Proceeding, after which time further employment of such counsel by the conduct Indemnitee shall be at the cost and expense of the defense of the Proceeding or that the defense conducted by Indemnitee. In all events, if the Company may not be adequate; or (iii) the Company Partnership shall not not, in fact fact, have timely employed counsel to assume the defense in of such Proceeding. The Company shall not be entitled to assume , then the defense of any Proceeding brought against an Indemnitee by or on behalf fees and expenses of the CompanyIndemnitee’s counsel shall be at the cost and expense of the Company or the Partnership, as applicable.

Defense of Certain Proceedings. As soon as practicable after receipt by any Indemnitee of notice of the commencement of any Proceeding, such Indemnitee shall, if a claim with respect thereto may be made against the Company under Section 8.2, notify the Company in writing of the commencement of such Proceeding; provided, however, that failure so to notify the Company shall not relieve the Company from any liability under Section 8.2 unless the Company shall have been prejudiced by such failure, or from any other liability which it may have to such Indemnitee other than under Section 8.2. With respect to any Proceeding, the Company may participate therein at its own expense and, except as otherwise provided herein, to the extent that it desires the Company, jointly with any other indemnifying party, shall be entitled to assume the defense of Indemnitee in the Proceeding, with counsel selected by the Company to the reasonable satisfaction of Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense of Indemnitee in the Proceeding, the Company shall not be liable to such Indemnitee under Section 8.2 for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense of Indemnitee in the Proceeding other than as otherwise provided herein. Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding where the Company has assumed the defense of the Indemnitee, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of Indemnitee in the Proceeding shall be at the expense of such Indemnitee unless (i) the employment of counsel by such Indemnitee shall have been authorized by the Company; or (ii) such Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and such Indemnitee in the conduct of the defense of the Proceeding or that the defense conducted by the Company may not be adequate; or (iii) the Company shall not in fact have employed counsel to assume the defense in such Proceeding. The Company shall not be entitled to assume the defense of any Proceeding brought against an Indemnitee by or on behalf of the Company.