Common use of Company as Indemnitor of First Resort Clause in Contracts

Company as Indemnitor of First Resort. The Company hereby acknowledges that a Purchaser Party may have certain rights to indemnification, advancement of expenses or insurance, provided by Purchasers and certain of its affiliates (other than the Company and its subsidiaries, collectively, the “Fund Indemnitors”). In the event that any Purchaser Party is made a party to or a participant in any Proceeding, to the extent resulting from any claim based on a Purchaser Party’s service to the Company as a director or other fiduciary of the Company, then the Company shall (i) be an indemnitor of first resort (i.e., its obligations to such Purchaser Party are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Purchaser Party are secondary), (ii) be required to advance reasonable expenses incurred by such Purchaser Party, and (iii) be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement, the Delaware General Corporation Law, and any provision of the Company’s bylaws or Certificate of Incorporation, as amended (or any other agreement between the Company and Purchaser), without regard to any rights such Purchaser Party may have against the Fund Indemnitors. The Company irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Fund Indemnitors on behalf of a Purchaser Party with respect to any claim for which such Purchaser Party has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Purchaser Party against the Company. The Fund Indemnitors are third party beneficiaries of the terms of this Section 4.6.

Company as Indemnitor of First Resort. (a) The Company hereby acknowledges agrees that a Purchaser Party may have certain rights to indemnification, advancement of expenses or insurance, provided by Purchasers and certain of its affiliates (other than it is the Company and its subsidiaries, collectively, the “Fund Indemnitors”). In the event that any Purchaser Party is made a party to or a participant in any Proceeding, to the extent resulting from any claim based on a Purchaser Party’s service to the Company as a director or other fiduciary of the Company, then the Company shall (i) be an indemnitor of first resort (i.e.under this Agreement or any other indemnification agreement, its arrangement or undertaking with respect to any Indemnitee, and as a result the Company’s obligations to any such Purchaser Party Indemnitee under this Agreement or any other agreement, arrangement or undertaking to provide advancement of expenses and indemnification to such Indemnitee are primary without regard to any rights such Indemnitee may have to seek or obtain indemnification or advancement of expenses from any other Person or any of its Affiliates (“Other Indemnitor”) or from any insurance policy for the benefit of such Indemnitee, and any obligation of the Fund Indemnitors to advance expenses or any Other Indemnitor to provide advancement or indemnification for all or any portion of the same expenses or liabilities incurred by such Purchaser Party are secondary)expenses, (ii) be required to advance reasonable expenses incurred by such Purchaser Party, and (iii) be liable for the full amount of all expensesliabilities, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted (including all interest, assessments and as required other charges paid or payable in connection with or in respect of such expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by the terms of this Agreement, the Delaware General Corporation Law, such Indemnitee and any provision of the Company’s bylaws or Certificate of Incorporation, as amended (or any other agreement between the Company and Purchaser), without regard to any rights such Purchaser Party may have against the Fund Indemnitors. The Company irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Fund Indemnitors on behalf of a Purchaser Party with respect to any claim for which such Purchaser Party has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Purchaser Indemnitee under any insurance policy for the benefit of such Indemnitee are secondary; and (b) The Company hereby further agrees that: (i) if any Indemnitee pays or causes to be paid, for any reason, any amounts otherwise payable or indemnifiable under Section 6.10 hereof, then such Indemnitee shall be indemnified therefor pursuant to Section 6.10; (ii) if any other party pays or causes to be paid on behalf of an Indemnitee, for any reason, any amounts otherwise payable or indemnifiable hereunder or under any other indemnification agreement, arrangement or undertaking (whether pursuant to contract, organizational document or otherwise) with such Indemnitee (a “Third Party against Payor”), then (A) such Third Party Payor shall be fully subrogated to all rights of an Indemnitee with respect to such payment and (B) the Company. The Fund Indemnitors are third party beneficiaries Company shall fully indemnify, reimburse and hold harmless such Third Party Payor for all such payments actually made by such Third Party Payor; and (iii) if any Indemnitee collects under any insurance policy for the benefit of such Indemnitee, any amounts otherwise payable or indemnifiable hereunder or under any other indemnification agreement, arrangement or undertaking (whether pursuant to contract, organizational document or otherwise) with such Indemnitee, then (A) such insurer shall be fully subrogated to all rights of such Indemnitee with respect to such payment and (B) the terms of this Section 4.6Company shall fully indemnify, reimburse and hold harmless such insurer for all such payments actually made by such insurer.

Company as Indemnitor of First Resort. The Company hereby acknowledges that a Purchaser Party may and each of the Members acknowledge certain of the Indemnified Persons (“Member Indemnitees”) have certain rights to indemnification, advancement of expenses or insurance, insurance provided by Purchasers and a Member or certain of its affiliates their respective Affiliates (other than the Company and its subsidiaries, collectively, the “Fund Member Indemnitors”)) separate and apart from such rights arising under this Agreement. In The Company agrees, and the event that any Purchaser Party is made a party to or a participant in any Proceeding, Members acknowledge: (i) to the extent resulting from legally permitted and as required by the terms of this Agreement and the Certificate (or by the terms of any claim based on a Purchaser Party’s service to other agreement between the Company as and a director or other fiduciary of the CompanyMember Indemnitee), then (A) the Company shall (i) be an is the indemnitor of first resort (i.e., its the Company’s obligations to such Purchaser Party each Member Indemnitee are primary and any obligation of the Fund Member Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Purchaser Party any Member Indemnitee are secondary), ) and (iiB) the Company shall be required to advance reasonable the full amount of expenses incurred by such Purchaser Party, a Member Indemnitee and (iii) shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement, the Delaware General Corporation Law, and any provision of the Company’s bylaws or Certificate of Incorporation, as amended (or any other agreement between the Company and Purchaser)settlement, without regard to any rights such Purchaser Party a Member Indemnitee may have against the Fund Member Indemnitors. The ; and (ii) the Company irrevocably waives, relinquishes and releases the Fund Member Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereofof any of the matters described in clause (i) of this sentence for which any Member Indemnitee has received indemnification or advancement from the Company. No The Company further agrees no advancement or payment by the Fund Member Indemnitors on behalf of a Purchaser Party any Member Indemnitee with respect to any claim for which such Purchaser Party a Member Indemnitee has sought indemnification from the Company shall affect the foregoing and the Fund Member Indemnitors shall have a right of contribution or be subrogated and/or subrogation to the extent of such advancement or payment to all of the rights of recovery of such Purchaser Party Member Indemnitee against the Company. The Fund Company and each Member agree the Member Indemnitors are third express third-party beneficiaries of the terms of this Section 4.614.2.

Company as Indemnitor of First Resort. (a) The Company hereby acknowledges agrees that a Purchaser Party may have certain rights to indemnification, advancement of expenses or insurance, provided by Purchasers and certain of its affiliates (other than it is the Company and its subsidiaries, collectively, the “Fund Indemnitors”). In the event that any Purchaser Party is made a party to or a participant in any Proceeding, to the extent resulting from any claim based on a Purchaser Party’s service to the Company as a director or other fiduciary of the Company, then the Company shall (i) be an indemnitor of first resort (i.e.under this Agreement or any other indemnification agreement, its arrangement or undertaking with respect to any Indemnitee, and as a result the Company’s obligations to any such Purchaser Party Indemnitee under this Agreement or any other agreement, arrangement or undertaking to provide advancement of expenses and indemnification to such Indemnitee are primary without regard to any rights such 51 Indemnitee may have to seek or obtain indemnification or advancement of expenses from any other Person or any of its Affiliates (“Other Indemnitor”) or from any insurance policy for the benefit of such Indemnitee, and any obligation of the Fund Indemnitors to advance expenses or any Other Indemnitor to provide advancement or indemnification for all or any portion of the same expenses or liabilities incurred by such Purchaser Party are secondary)expenses, (ii) be required to advance reasonable expenses incurred by such Purchaser Party, and (iii) be liable for the full amount of all expensesliabilities, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted (including all interest, assessments and as required other charges paid or payable in connection with or in respect of such expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by the terms of this Agreement, the Delaware General Corporation Law, such Indemnitee and any provision of the Company’s bylaws or Certificate of Incorporation, as amended (or any other agreement between the Company and Purchaser), without regard to any rights such Purchaser Party may have against the Fund Indemnitors. The Company irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Fund Indemnitors on behalf of a Purchaser Party with respect to any claim for which such Purchaser Party has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Purchaser Indemnitee under any insurance policy for the benefit of such Indemnitee are secondary; and (i) if any Indemnitee pays or causes to be paid, for any reason, any amounts otherwise payable or indemnifiable under Section 6.4(e), then such Indemnitee shall be indemnified therefor in accordance with Section 6.4(e); (ii) if any other party pays or causes to be paid on behalf of an Indemnitee, for any reason, any amounts otherwise payable or indemnifiable hereunder or under any other indemnification agreement, arrangement or undertaking (whether pursuant to contract, organizational document or otherwise) with such Indemnitee (a “Third Party against Payor”), then (x) such Third Party Payor shall be fully subrogated to all rights of an Indemnitee with respect to such payment and (y) the Company. The Fund Indemnitors are third party beneficiaries Company shall fully indemnify, reimburse and hold harmless such Third Party Payor for all such payments actually made by such Third Party Payor; and (iii) if any Indemnitee collects under any insurance policy for the benefit of such Indemnitee, any amounts otherwise payable or indemnifiable hereunder or under any other indemnification agreement, arrangement or undertaking (whether pursuant to contract, organizational document or otherwise) with such Indemnitee, then (x) such insurer shall be fully subrogated to all rights of such Indemnitee with respect to such payment and (y) the terms of this Section 4.6Company shall fully indemnify, reimburse and hold harmless such insurer for all such payments actually made by such insurer.

Company as Indemnitor of First Resort. The Company hereby acknowledges that a Purchaser Party may have certain rights to indemnification, advancement of expenses or insurance, provided by Purchasers Purchaser and certain of its affiliates (other than the Company and its subsidiaries, collectively, the “Fund Indemnitors”). In the event that any Purchaser Party is, or is made threatened to be made, a party to or a participant in any Proceedingproceeding, to the extent resulting from any claim based on a Purchaser Party’s service to the Company as a director or other fiduciary of the Company, then the Company shall (i) be an indemnitor of first resort (i.e., its obligations to such Purchaser Party are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Purchaser Party are secondary), (ii) be required to advance reasonable expenses incurred by such Purchaser Party, and (iii) be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement, Section 302A.521 subdivisions 2 and 3 of the Delaware General Corporation LawMinnesota Statutes, and any provision of the Company’s bylaws or Certificate of Incorporation, as amended (or any other agreement between the Company and Purchaser), without regard to any rights such Purchaser Party may have against the Fund Indemnitors. The Company irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Fund Indemnitors on behalf of a Purchaser Party with respect to any claim for which such Purchaser Party has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Purchaser Party against the Company. The Fund Indemnitors are third party beneficiaries of the terms of this Section 4.64.2 (b).

Company as Indemnitor of First Resort. The rights of indemnification provided in this ARTICLE XII are in addition to any rights to which a Covered Person may otherwise be entitled by contract (including advancement of expenses) or as a matter of Requirements of Law. The Company hereby acknowledges that a Purchaser Party the Covered Persons may have certain rights to indemnification, advancement of expenses or insurance, and/or insurance provided by Purchasers the Members and certain of its affiliates their Affiliates (other than the Company and its subsidiaries, collectively, the “Fund Member Indemnitors”). In the event The Company hereby agrees that any Purchaser Party is made a party to or a participant in any Proceeding, to the extent resulting from any claim based on a Purchaser Party’s service to (a) the Company as a director or other fiduciary of is the Company, then the Company shall (i) be an indemnitor of first resort for matters covered by this ARTICLE XII (i.e., its obligations to such Purchaser Party the Covered Persons under this ARTICLE XII are primary and any obligation of the Fund Member Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Purchaser Party the Covered Persons are secondary), (iib) the Company will be required to advance reasonable expenses incurred by such Purchaser Party, and (iii) be liable for the full amount of expenses incurred by the Covered Persons and will be liable for all expenses, liabilities, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement, the Delaware General Corporation Law, and any provision of the Company’s bylaws or Certificate of Incorporation, as amended ARTICLE XII (or any other agreement between the Company and Purchaserthe Covered Persons), without regard to any rights such Purchaser Party the Covered Persons may have against the Fund Member Indemnitors. The , and (c) the Company irrevocably waives, relinquishes and releases the Fund Member Indemnitors from any and all claims against the Fund Member Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No The Company further agrees that no advancement or payment by the Fund Member Indemnitors on behalf of a Purchaser Party Covered Person with respect to any claim for which such Purchaser Party the Covered Person has sought indemnification from the Company shall pursuant to this ARTICLE XII will affect the foregoing foregoing, and the Fund Member Indemnitors shall will have a right of contribution or and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Purchaser Party the Covered Persons against the Company. The Fund Company agrees that the Member Indemnitors who are not Members are express third party beneficiaries of the terms of this Section 4.612.8.