Common use of Duty of Care Indemnification Clause in Contracts

Duty of Care Indemnification. (a) The Manager shall not be liable to the Company or to any of its Members for any loss or damage occasioned by any acts or omissions in the performance of its services as Manager, unless such loss or damage is due to the gross negligence, bad faith or willful misfeasance of the Manager, or as otherwise required by law. (b) The Manager (which shall include for this purpose each of its partners, general partners, officers, employees, agents and each person who controls any of them, and their executors, heirs, assigns, successors and other legal representatives) shall be indemnified to the fullest extent permitted by law by the Company (but not by the Members individually) against any cost, expense (including attorneys' fees), judgment or liability reasonably incurred by or imposed upon it in connection with any action, suit or proceeding (including any proceeding before any administrative or legislative body or agency) to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been the Manager; provided, however, that the Manager shall not be so indemnified to the extent such cost, expense, judgment or liability shall have been finally determined in a decision on the merits in any such action, suit or proceeding to have been incurred or suffered by the Manager by reason of its gross negligence, bad faith or willful misfeasance. The right to indemnification granted by this Section 4.5 shall be in addition to any rights to which the Manager may otherwise be entitled and shall inure to the benefit of the successors or assigns of the Manager. The Company shall pay the expenses incurred by the Manager in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by the Manager to repay such payment if there shall be an adjudication or determination that it is not entitled to indemnification as provided herein. The Manager may not satisfy any right of indemnity or reimbursement granted in this Section 4.5 or to which it may be otherwise entitled except out of the assets of the Company, and no Member shall be personally liable with respect to any such claim for indemnity or reimbursement. The Manager may obtain appropriate insurance on behalf of the Company to secure the Company's obligations hereunder. (c) Notwithstanding Sections 4.5(a) and (b), nothing contained in this Agreement shall constitute a waiver by any Member of any of such Member’s legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.

Duty of Care Indemnification. (a) The Manager To the fullest extent permitted by law, the General Partner and its Affiliates and their respective partners, members, managers, shareholders, officers, directors, employees and associates and, with the approval of the General Partner, any agent of any of the foregoing (including their respective executors, heirs, assigns, successors or other legal representatives) (each, a “Covered Person” and collectively, the “Covered Persons”), shall not be liable to the Company Partnership or to any of its Members the other Partners for any loss loss, claim, damage or damage liability occasioned by any acts or omissions in the performance of its services as Managerhereunder, unless except to the extent that it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such loss loss, claim, damage or damage liability is due to the gross negligence, an act or omission of a Covered Person is due to an act or omission of such a Covered Person that constituted a bad faith or willful misfeasance violation of the Manager, or as otherwise required by lawimplied contractual covenant of good faith and fair dealing. (b) The Manager (which shall include for this purpose each of its partners, general partners, officers, employees, agents and each person who controls any of them, and their executors, heirs, assigns, successors and other legal representatives) A Covered Person shall be indemnified to the fullest extent permitted by law by the Company (but not by the Members individually) Partnership against any costlosses, expense claims, damages, liabilities and expenses (including attorneys' ’ fees), judgment or liability reasonably judgments, fines, penalties and amounts paid in settlement) incurred by or imposed upon it by reason of or in connection with any action taken or omitted by such Covered Person arising out of the Covered Person’s status as a Partner or its activities on behalf of the Partnership, including in connection with any action, suit suit, investigation or proceeding (including any proceeding before any administrative judicial, administrative, regulatory or legislative body or agency) agency to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been a Partner or by reason of serving or having served, at the Managerrequest of the Fund General Partner, as a director, officer, consultant, advisor, manager, member or partner of any enterprise in which the Fund has or had a financial interest, including issuers of Portfolio Investments; provided, however, provided that the Manager Partnership may, but shall not be so indemnified required to, indemnify a Covered Person with respect to any matter as to which there has been a Final Adjudication that such Covered Person’s acts or its failure to act (i) constituted a bad faith violation of the extent such costimplied contractual covenant of good faith and fair dealing, expense, judgment or liability shall have been finally determined in (ii) were of a decision on the merits in any such action, suit or proceeding to have been incurred or suffered nature that makes indemnification by the Manager by reason of its gross negligence, bad faith or willful misfeasanceFund unavailable. The right to indemnification granted by this Section 4.5 5.7 shall be in addition to any rights to which the Manager a Covered Person may otherwise be entitled and shall inure to the benefit of the successors by operation of law or valid assigns of the Managersuch Covered Person. The Company Partnership shall pay the expenses incurred by the Manager a Covered Person in defending a civil or criminal action, suit suit, investigation or proceeding in advance of the final disposition of such action, suit suit, investigation or proceeding, upon receipt of an undertaking by the Manager Covered Person to repay such payment if there shall be an adjudication or determination a Final Adjudication that it is not entitled to indemnification as provided herein. The Manager may In any suit brought by the Covered Person to enforce a right to indemnification hereunder it shall be a defense that the Covered Person has not satisfy any right met the applicable standard of indemnity or reimbursement granted conduct set forth in this Section 4.5 5.7, and in any suit in the name of the Partnership to recover expenses advanced pursuant to the terms of an undertaking the Partnership shall be entitled to recover such expenses upon Final Adjudication that the Covered Person has not met the applicable standard of conduct set forth in this Section 5.7. In any such suit brought to enforce a right to indemnification or to which it may recover an advancement of expenses pursuant to the terms of an undertaking, the burden of (c) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or the Partners, the Covered Person shall not be liable to the Partnership or to any Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person otherwise entitled except out existing at law or in equity to the Partnership or the Partners, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person. Notwithstanding anything to the contrary contained in this Agreement or otherwise applicable provision of law or equity, to the maximum extent permitted by the Act, a Covered Person shall owe no duties (including fiduciary duties) to the Partnership or the Partners other than those specifically set forth herein; provided that a Covered Person shall have the duty to act in accordance with the implied contractual covenant of good faith and fair dealing. (d) Each of the assets of the CompanyCovered Persons may consult with legal counsel, accountants and no Member shall be personally liable with respect to other experts selected by it and any such claim for indemnity act or reimbursement. The Manager may obtain appropriate insurance omission suffered or taken by it on behalf of the Company to secure Partnership or in furtherance of the Company's obligations hereunder. (c) Notwithstanding Sections 4.5(a) interests of the Partnership or the Fund in good faith in reliance upon and (b), nothing contained in this Agreement shall constitute a waiver by any Member of any accordance with the advice of such Member’s legal rights under applicable U.S. federal securities laws counsel, accountants or any other laws whose applicability is not permitted experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to be contractually waived.such act or omission. ARTICLE 6

Duty of Care Indemnification. (a) The Manager General Partner (which terms shall include for this purpose each member, director, manager, officer, employee or agent of, or any person who controls, the General Partner, and their respective executors, heirs, assigns, successors or other legal representatives) shall not be liable to the Company Partnership or to any of its Members Limited Partners for any loss or damage occasioned by any acts or omissions in the performance of its services as Managerunder this Agreement, unless such loss or damage is due to the gross negligence, willful misconduct, or bad faith or willful misfeasance of the Managersuch General Partner, or as otherwise required by law. (b) The Manager General Partner (which terms shall include for this purpose each of its partnersmember, general partnersdirector, officersmanager, employeesofficer, agents and each employee or agent of, or any person who controls any of themcontrols, the General Partner, and their respective executors, heirs, assigns, successors and or other legal representatives) shall be indemnified to the fullest extent permitted by law by the Company Partnership (but not by the Members Partners individually) against any cost, expense (including attorneys' fees’ fees and expenses), judgment judgment, or liability reasonably incurred by or imposed upon it in connection with any action, suit or proceeding (including any proceeding before any judicial, administrative or legislative body or agency) to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been the ManagerGeneral Partner; provided, however, that the Manager no General Partner shall not be so indemnified to the extent such cost, expense, judgment or liability shall have been finally determined in a decision on the merits in any such action, suit or proceeding to have been incurred or suffered by the Manager General Partner by reason of its gross negligence, willful misconduct or bad faith or willful misfeasanceof the General Partner. The right to indemnification granted by this Section 4.5 7.6 shall be in addition to any rights to which the Manager General Partner may otherwise be entitled and shall inure to the benefit of the successors or assigns of the Managersuch General Partner. The Company Partnership shall pay the expenses incurred by the Manager General Partner in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by the Manager such General Partner to repay such payment if there shall be an adjudication or determination that it is not entitled to indemnification as provided herein. The Manager It shall be a defense that (i) in any suit brought by the General Partner to enforce a right to indemnification hereunder, and (ii) in any suit in the name of the Partnership to recover expenses advanced pursuant to the terms of an undertaking, the Partnership shall be entitled to recover such expenses upon a final adjudication that, the General Partner or other person claiming a right to indemnification hereunder has not met the applicable standard of conduct set forth in Section 7.6(a). No General Partner may not satisfy any right of indemnity or reimbursement granted in this Section 4.5 7.6 or to which it may be otherwise entitled except out of the assets of the CompanyPartnership, and no Member Partner shall be personally liable with respect to any such claim for indemnity or reimbursement. The Manager General Partner in its sole discretion may obtain appropriate insurance on behalf of the Company Partnership to secure the Company's Partnership’s obligations hereunder. (c) Notwithstanding Sections 4.5(a) and (b), nothing contained in this Agreement shall constitute a waiver by any Member of any of such Member’s legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.

Duty of Care Indemnification. (a) The Manager To the fullest extent permitted by law, the General Partner and its Affiliates and their respective partners, members, managers, shareholders, officers, directors, employees and associates and, with the approval of the General Partner, any agent of any of the foregoing (including their respective executors, heirs, assigns, successors or other legal representatives) (each, a “Covered Person” and collectively, the “Covered Persons”), shall not be liable to the Company Partnership or to any of its Members the other Partners for any loss loss, claim, damage or damage liability occasioned by any acts or omissions in the performance of its services as Managerhereunder, unless except to the extent that it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such loss loss, claim, damage or damage liability is due to the gross negligence, an act or omission of a Covered Person is due to an act or omission of such a Covered Person that constituted a bad faith or willful misfeasance violation of the Manager, or as otherwise required by lawimplied contractual covenant of good faith and fair dealing. (b) The Manager (which shall include for this purpose each of its partners, general partners, officers, employees, agents and each person who controls any of them, and their executors, heirs, assigns, successors and other legal representatives) A Covered Person shall be indemnified to the fullest extent permitted by law by the Company (but not by the Members individually) Partnership against any costlosses, expense claims, damages, liabilities and expenses (including attorneys' ’ fees), judgment or liability reasonably judgments, fines, penalties and amounts paid in settlement) incurred by or imposed upon it by reason of or in connection with any action taken or omitted by such Covered Person arising out of the Covered Person’s status as a Partner or its activities on behalf of the Partnership, including in connection with any action, suit suit, investigation or proceeding (including any proceeding before any administrative judicial, administrative, regulatory or legislative body or agency) agency to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been a Partner or by reason of serving or having served, at the Managerrequest of the Partnership in its capacity as Fund General Partner, as a director, officer, consultant, advisor, manager, member or partner of any enterprise in which the Fund has or had a financial interest, including issuers of Portfolio Investments; provided, however, provided that the Manager Partnership may, but shall not be so indemnified required to, indemnify a Covered Person with respect to any matter as to which there has been a Final Adjudication that such Covered Person’s acts or its failure to act (i) constituted a bad faith violation of the extent such costimplied contractual covenant of good faith and fair dealing, expense, judgment or liability shall have been finally determined in (ii) were of a decision on the merits in any such action, suit or proceeding to have been incurred or suffered nature that makes indemnification by the Manager by reason of its gross negligence, bad faith or willful misfeasanceFund unavailable. The right to indemnification granted by this Section 4.5 5.7 shall be in addition to any rights to which the Manager a Covered Person may otherwise be entitled and shall inure to the benefit of the successors by operation of law or valid assigns of the Managersuch Covered Person. The Company Partnership shall pay the expenses incurred by the Manager a Covered Person in defending a civil or criminal action, suit suit, investigation or proceeding in advance of the final disposition of such action, suit suit, investigation or proceeding, upon receipt of an undertaking by the Manager Covered Person to repay such payment if there shall be an adjudication or determination a Final Adjudication that it is not entitled to indemnification as provided herein. The Manager may In any suit brought by the Covered Person to enforce a right to indemnification hereunder it shall be a defense that the Covered Person has not satisfy any right met the applicable standard of indemnity or reimbursement granted conduct set forth in this Section 4.5 5.7, and in any suit in the name of the Partnership to recover expenses advanced pursuant to the terms of an undertaking the Partnership shall be entitled to recover such expenses upon Final Adjudication that the Covered Person has not met the applicable standard of conduct set forth in this Section 5.7. In any such suit brought to enforce a right to indemnification or to which it may recover an advancement of expenses pursuant to the (c) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or the Partners, the Covered Person shall not be liable to the Partnership or to any Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person otherwise entitled except out existing at law or in equity to the Partnership or the Partners, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person. Notwithstanding anything to the contrary contained in this Agreement or otherwise applicable provision of law or equity, to the maximum extent permitted by the Act, a Covered Person shall owe no duties (including fiduciary duties) to the Partnership or the Partners other than those specifically set forth herein; provided that a Covered Person shall have the duty to act in accordance with the implied contractual covenant of good faith and fair dealing. (d) Each of the assets of the CompanyCovered Persons may consult with legal counsel, accountants and no Member shall be personally liable with respect to other experts selected by it and any such claim for indemnity act or reimbursement. The Manager may obtain appropriate insurance omission suffered or taken by it on behalf of the Company to secure Partnership or in furtherance of the Company's obligations hereunder. (c) Notwithstanding Sections 4.5(a) interests of the Partnership or the Fund in good faith in reliance upon and (b), nothing contained in this Agreement shall constitute a waiver by any Member of any accordance with the advice of such Member’s legal rights under applicable U.S. federal securities laws counsel, accountants or any other laws whose applicability is not permitted experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to be contractually waived.such act or omission. ARTICLE 6

Duty of Care Indemnification. (a) The Manager shall not be liable to the Company or to any of its Members for any loss or damage occasioned by any acts or omissions in the performance of its services as Manager, unless such loss or damage is due to the gross negligence, bad faith or willful misfeasance of the Manager, or as otherwise required by law. (b) The Manager (which shall include for this purpose each of its partners, general partners, officers, employees, agents and each person who controls any of them, and their executors, heirs, assigns, successors and other legal representatives) shall be indemnified to the fullest extent permitted by law by the Company (but not by the Members individually) against any cost, expense (including attorneys' ’ fees), judgment or liability reasonably incurred by or imposed upon it in connection with any action, suit or proceeding (including any proceeding before any administrative or legislative body or agency) to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been the Manager; provided, however, that the Manager shall not be so indemnified to the extent such cost, expense, judgment or liability shall have been finally determined in a decision on the merits in any such action, suit or proceeding to have been incurred or suffered by the Manager by reason of its gross negligence, bad faith or willful misfeasance. The right to indemnification granted by this Section 4.5 shall be in addition to any rights to which the Manager may otherwise be entitled and shall inure to the benefit of the successors or assigns of the Manager. The Company shall pay the expenses incurred by the Manager in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by the Manager to repay such payment if there shall be an adjudication or determination that it is not entitled to indemnification as provided herein. The Manager may not satisfy any right of indemnity or reimbursement granted in this Section 4.5 or to which it may be otherwise entitled except out of the assets of the Company, and no Member shall be personally liable with respect to any such claim for indemnity or reimbursement. The Manager may obtain appropriate insurance on behalf of the Company to secure the Company's ’s obligations hereunder. (c) Notwithstanding Sections 4.5(a) and (b), nothing contained in this Agreement shall constitute a waiver by any Member of any of such Member’s legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.

Duty of Care Indemnification. (a) The Manager (and its Investment Committee or Advisory Board, if established) shall not be liable to the Company or to any of its Members for any loss or damage occasioned by any acts or omissions in the performance of its services as Manager, unless such loss or damage is due to the gross negligence, bad faith recklessness or willful misfeasance misconduct of the Manager, or as otherwise required by law. (b) The Manager (which shall include for this purpose each of its partnersmembers and employees, general partnersand each of their respective directors, officers, officers and employees, agents and each person who controls any of them, and their executors, heirs, assigns, successors and other legal representatives) shall be indemnified to the fullest extent permitted by law by the Company (but not by the Members individually) against any cost, expense (including attorneys' fees), judgment or liability reasonably incurred by or imposed upon it in connection with any action, suit or proceeding (including any proceeding before any administrative or legislative body or agency) to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been the Manager; provided, however, that the Manager shall not be so indemnified to the extent such cost, expense, judgment or liability shall have been finally determined in a decision on the merits in any such action, suit or proceeding to have been incurred or suffered by the Manager by reason of its gross negligence, bad faith recklessness or willful misfeasancemisconduct. The right to indemnification granted by this Section 4.5 Article 4.6 shall be in addition to any rights to which the Manager may otherwise be entitled and shall inure to the benefit of the successors or assigns of the Manager. The Company shall pay the expenses incurred by the Manager in defending a a, civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by the Manager to repay such payment if there shall be an adjudication or determination that it is not entitled to indemnification as provided herein. The Manager may not satisfy any right of indemnity or reimbursement granted in this Section 4.5 Article 4.6 or to which it may be otherwise entitled except out of the assets of the Company, and no Member shall be personally liable with respect to any such claim for indemnity or reimbursement. The Manager may obtain appropriate insurance on behalf of the Company to secure the Company's obligations hereunder. (c) Notwithstanding Sections 4.5(a) and (b), nothing contained in this Agreement shall constitute a waiver by any Member of any of such Member’s legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.

Duty of Care Indemnification. (a) The Manager Each Participant agrees that no Covered Person shall not be liable to the Company venture or to any of its Members the Participants or their shareholders for any loss or damage liabilities, obligations, losses, costs, damages, expenses, claims, judgments and reasonable attorneys fees and expenses (collectively, “Losses”) occasioned by any act or omission of any Covered Person in connection with the performance of such Covered Person’s services hereunder, except that DME shall be liable to the Participants: (i) for any misstatement or omission of material fact contained in a filing made by or on behalf of a Participant under the United States Securities and Exchange Act of 1934 or other federal law or other public disclosure in so far as such losses, damages, expenses or claims arise out of or are based upon any written information provided by such Covered Person regarding the Participants or the venture expressly for use in such filing or other public disclosure, to the extent (and only to the extent) that such misstatement or omission of a material fact contained in such filing occurs in reliance upon and in conformity with the written information furnished by the Covered Person; (ii) for acts or omissions in the performance of its services as Manager, unless such loss or damage is due to the by it which constitute gross negligence, bad faith willful misconduct or willful misfeasance reckless disregard of DME’s obligations under this Agreement, (iii) for breaches of the ManagerGuidelines by DME which are not cured within 15 days of the earlier of (x) the date on which DME becomes aware of such breach, and (y) the date on which DME receives a written notice of such breach from a Participant or an authorized representative of a Participant; or (iv) for breaches of Section 5.2 hereof in each case as otherwise required finally determined by lawa court having proper jurisdiction and after all appeals are resolved or exhausted. (b) The Manager (which venture shall include for this purpose indemnify and hold harmless each of its partners, general partners, officers, employees, agents Covered Person from and each person who controls any of them, and their executors, heirs, assigns, successors and other legal representatives) shall be indemnified to the fullest extent permitted by law by the Company (but not by the Members individually) against any cost, expense (including attorneys' fees), judgment Losses arising out of any claim asserted or liability reasonably incurred by or imposed upon it threatened to be asserted in connection with any action, suit matter arising out of or proceeding (including any proceeding before any administrative in connection with this Agreement or legislative body the venture’s business or agency) to which it may be made a party or otherwise be involved or with which it shall be threatened by reason of being or having been the Manageraffairs; provided, however, that no Covered Person shall be entitled to any such indemnification with respect to any expense, loss, liability or damage which was caused by (i) any misstatement or omission of material fact contained in a filing made by or on behalf of a Participant under the Manager shall not be United States Securities and Exchange Act of 1934 or other federal law or other public disclosure in so indemnified far as such losses, damages, expenses or claims arise out of or are based upon any written information provided by such Covered Person regarding the Participants or the venture expressly for use in such filing or other public disclosure, to the extent (and only to the extent) that such cost, expense, judgment misstatement or liability shall have been finally determined omission of a material fact contained in a decision on such filing occurs in reliance upon and in conformity with the merits in any such action, suit or proceeding to have been incurred or suffered written information furnished by the Manager by reason of its Covered Person, (ii) any Covered Person’s gross negligence, bad faith willful misconduct or willful misfeasancereckless disregard of any of the its obligations under this Agreement, (iii) for breaches of the Guidelines by DME in connection with its actions under this Agreement which breaches are not cured within 15 days of the earlier of (x) the date on which DME becomes aware of such breach, and (y) the date on which DME receives a written notice of such breach from a Participant; or (iv) for breaches of Section 5.2 hereof. The right to indemnification granted by this Section 4.5 venture shall be in addition advance to any rights Covered Person the reasonable costs and expenses of investigating and/or defending such claim subject to which receiving a written undertaking from the Manager may otherwise be entitled and shall inure to the benefit of the successors or assigns of the Manager. The Company shall pay the expenses incurred by the Manager in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by the Manager Covered Person to repay such payment amounts if there shall be an adjudication and to the extent of any subsequent determination by a court or determination other tribunal of competent jurisdiction that it is the Covered Person was not entitled to indemnification as provided hereinhereunder. The Manager may not satisfy any right of indemnity or reimbursement granted in this Section 4.5 or to which it may be otherwise entitled except out of Notwithstanding the assets of the Companyforegoing, and no Member Participant shall be personally liable with respect to hereunder for any such settlement of any action or claim for indemnity or reimbursement. The Manager may obtain appropriate insurance on behalf of the Company to secure the Company's obligations hereundereffected without its consent thereto, which will not be unreasonably withheld. (c) Notwithstanding Sections 4.5(aAll transactions effected pursuant to this Agreement by DME shall be for the Participants’ accounts and risk. DME has not made and makes no guarantee whatsoever as to the success or profitability of DME’s trading methods and strategies, and the Participants each acknowledge that it has received no such guarantee from DME or any Covered Person, and has not entered into this Agreement in consideration of or in reliance upon any such guarantee or similar representation from DME or any Covered Person. (d) DME shall indemnify and hold harmless each of the Participants against any Losses which were caused by: (b), nothing i) any misstatement or omission of material fact contained in this Agreement shall constitute a waiver filing made by or on behalf of a Participant under the United States Securities and Exchange Act of 1934 or other federal law or other public disclosure in so far as such losses, damages, expenses or claims arise out of or are based upon any Member written information provided by DME regarding the Participants or the venture expressly for use in such filing or other public disclosure, to the extent (and only to the extent) that such misstatement or omission of a material fact contained in such filing occurs in reliance upon and in conformity with the written information furnished by DME; (ii) DME’s fraud, gross negligence, willful misconduct or reckless disregard of any of DME’s obligations under this Agreement; (iii) for breaches of the Guidelines by DME in connection with its duties under this Agreement which breaches are not cured within 15 days of the earlier of (x) the date on which DME becomes aware of such Memberbreach, and (y) the date on which DME receives a notice of such breach from a Participant; or (iv) for breaches of Section 5.2 hereof; or (v) any Tax Proceeding. (e) If a Participant shall receive notice of or have actual knowledge of any Tax Proceeding, such Participant shall give DME written notice of such Tax Proceeding; provided, however, that failure to notify DME shall not relieve DME from any liability which it may have on account of the Tax Proceeding except to the extent that DME shall have been materially prejudiced by such failure. DME shall be entitled to assume control of the defense or settlement of such matter. If DME elects to assume such control, the Participant being indemnified and its counsel shall be entitled to consult with DME and its counsel and participate in the defense or settlement of such matter at its own cost; provided, however, that DME shall bear the costs and expenses of such Participant’s legal rights counsel (from one law firm) if, in the reasonable opinion of counsel mutually acceptable to the parties hereto, use of such Participant’s counsel is necessary as a result of a conflict of interest between the Participant, on the one hand, and DME, on the other hand. In any event, DME shall indicate in writing to the Participant being indemnified within 10 calendar days after such Participant has given DME written notice whether DME intends to pay the claim or assume control of the defense or settlement of such matter. In the event DME exercises its right to assume control of the defense, the Participant being indemnified shall reasonably cooperate with DME in such defense and make available to DME witnesses, pertinent records, materials and information in its possession or under applicable U.S. federal securities laws its control relating thereto as are reasonably requested by DME. No claim may be settled by DME without the written consent of such Participant, which consent shall not be unreasonably withheld or delayed; provided, however, that DME may settle such claim without the consent of such Participant so long as the settlement (x) includes an unconditional release of such Participant, in form and substance reasonably satisfactory to such Participant, from the claimant, (y) does not impose any other laws whose applicability liabilities or obligations on such Participant, and (z) with respect to any non-monetary provision of any settlement of a claim does not impose and conditions upon such Participant. (f) The amount which any indemnifying party is required to pay to, or for the benefit of, an indemnified person under this Section 4.4 will be reduced (including, without limitation, retroactively) by any insurance proceeds which are actually paid by, or on behalf of, the indemnified party in reduction of the related Losses. (g) If the indemnity provided for in Section 4.4 and to which an Covered Person is otherwise entitled is unavailable to such Covered Person in respect of any Losses referred to therein, then the venture, in lieu of indemnifying such Covered Person, shall contribute to the amount paid or payable by such Covered Person as a result of such Losses in the proportion the total capital of the venture (exclusive of the balance in the Covered Person’s Capital Account (or the Capital Account of DME if the Covered Person is not permitted DME)) bears to the total capital of the venture (including the balance in Covered Person’s Capital Account (or the Capital Account of DME if the Covered Person is not DME), which contribution shall be contractually waivedtreated as an expense of the venture calculated as if the DME’s Capital Account balance was equal to zero.