EXHIBIT 10.72
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of July 31,
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1998, by and between HOB Entertainment, Inc., a Delaware corporation (the
"Company"), and Chase Venture Capital Associates, L.P. ("Chase"), for the
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benefit of Chase and certain related persons and entities as more fully set
forth below.
RECITALS:
X. Xxxxx is presently a stockholder of the Company and has indicated
that, through an affiliate, Chase/HOB 1998 Partners (GC), L.L.C. ("Chase HOB"),
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it is willing to make a substantial additional investment in the stock of the
Company.
B. In order to induce Chase to cause its affiliate to make such further
investment in the Company, the Company has agreed to indemnify Chase and certain
related persons or entities as follows.
AGREEMENT:
1. Indemnity. The Company agrees, to the fullest extent permitted by
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applicable law, to indemnify and hold harmless Chase, each director, officer,
employee, agent, advisor, partner, affiliate and stockholder of Chase, and any
person affiliated with any of such persons (including, without limitation, (i)
Chase Capital Partners and each of its partners and (ii) Chase HOB and each of
its members), against any and all Expenses (as defined below), costs, losses,
claims, damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted), promptly as such amounts are incurred, to which they, or any of them,
may become subject insofar as such losses, claims, damages or liabilities arise
out of or are based upon or in any manner relate to any claim, complaint or
other allegation initiated by a party other than a party entitled to
indemnification hereunder, with respect to (i) the status of Chase as a
stockholder of the Company prior to the completion of the offering of Class D
Preferred Stock by the Company, (ii) the acquisition of shares of stock of the
Company by Chase HOB pursuant to the Class D Preferred Stock Purchase Agreement
(the "Purchase Agreement") and its participation in the transactions
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contemplated thereby or (iii) the participation by Chase or any of the related
persons and entities identified above in planning, structuring, obtaining
approval of, or participating in the transactions contemplated by the Purchase
Agreement, whether such event participating in the transactions contemplated by
the Purchase Agreement, whether such event took place before or after the
execution of this Agreement. The right to indemnity provided in this Agreement
is in addition to any obligation which the Company may otherwise have
2. Expenses. As used in the Agreement, the term "Expenses" shall be
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interpreted broadly and include (without limitation) damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and disbursements and costs of
attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
3. Procedures. In the event that any indemnified party proposes to
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assert the right to be indemnified under Section 1, such party will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim is to be made against the Company
under this Agreement, notify the Company of the commencement of such action,
suit or proceeding, enclosing a copy of all papers served; provided, however,
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that the omission so to notify the Company of any such action, suit or
proceeding shall not, however, relieve the Company from any liability unless,
and only to the extent that, the Company is actually prejudiced by such delay.
In case any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the Company of the commencement thereof,
the Company shall be entitled to participate in, and, to the extent that it
wishes, to assume the defense thereof, with outside counsel reasonably
satisfactory to such indemnified party, provided that such defense may only be
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assumed by the Company if (i) the company confirms in writing its responsibility
to indemnify the indemnified party in full in respect of such proceeding,
without any reservation of rights and (ii) the indemnified party is satisfied,
in its reasonable judgment, that the Company possesses the financial resources
to defend and resolve such claim. Throughout the pendency of any claim, the
indemnified party shall nonetheless retain its right, at the Company's expense,
to employ separate counsel of its choice in any such action in order to monitor
the proceedings, including to monitor the Company's compliance with its duty to
defend fully such indemnified party in respect thereof and the Company shall
provide such counsel with full access to its counsel and the related
proceedings; provided, however, that the Company shall be responsible for the
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expenses of only one such counsel (and any necessary local counsel) for all
parties entitled to indemnification under this Agreement. If the Company assumes
the defense of any such proceeding, no settlement with respect to such
proceeding will be made involving any indemnified party without the prior
written consent of all indemnified parties, which consent shall not be
unreasonably withheld.
4. Enforcement. If a proper claim or request under this Agreement is not
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paid by the Company, or on its behalf, within thirty days after a written claim
or request has been received by the Company, the indemnified party may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, the indemnified
party shall also be entitled to be paid all Expenses of prosecuting such suit.
The Company shall have the right to recoup from the Indemnitee the amount of
any item or items of Expenses theretofore paid by the Company pursuant to this
Agreement, to the extent such Expenses are not reasonable in nature or amounts;
provided, however, that the Company shall have the burden of proving such
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Expenses to be unreasonable. The burden of proving that the indemnified party is
not entitled to indemnification for any other reason shall be upon the Company.
5. Subrogation. In the event of payment under this Agreement, the
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Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the
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indemnified party, who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
6. Partial Indemnification. If the indemnified party is entitled under
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any provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the indemnified party for the portion of such
Expenses to which the indemnified party is entitled.
7. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which taken together shall constitute one instrument.
8. Governing Law. This Agreement shall be governed by and construed in
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accordance with Delaware law, without regard to the conflicts of law provisions
thereof.
9. Saving Clause. The intention of this parties is to indemnify Chase
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and the other persons and entities affiliated therewith which constitute
indemnified parties hereunder to the greatest permitted by applicable law in
connection with the transactions and actions identified above. Accordingly,
wherever there is conflict between any provision of this Agreement and any
applicable present or future statute, law or regulation contrary to which the
Company and the indemnified party have no legal right to contract, the latter
shall prevail, but in such event the affected provisions of this Agreement shall
be curtailed and restricted to the extent, but only to the extent, necessary to
bring them within applicable legal requirements.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
HOB ENTERTAINMENT, INC.
By /s/ Xxxxxxx X. Trojan
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President
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners
General Partner
By /s/ Xxxxx X. Xxxxxxxx
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Authorized Signatory
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