Common use of Exceptions to Indemnification Clause in Contracts

Exceptions to Indemnification. Indemnification shall not be provided to a Covered Person under Section 6.4 if it shall have been fully adjudicated in a decision on the merits by the court or other body before which the proceeding was brought that such Covered Person (i) did not act in good faith in the reasonable belief that such Covered Person’s action was in the best interests of the Trust or (ii) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “Disabling Conduct”). As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final adjudication in a decision on the merits that such Covered Person is liable by reason of Disabling Conduct, indemnification shall be provided if there has been (i) a determination by the court or other body before which the proceeding was brought that the Covered Person was not liable by reason of Disabling Conduct, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable determination, based upon a review of the readily available facts (as opposed to a full trial-type inquiry), that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person shall not prevent the recovery from the Covered Person of any amount paid to such Covered Person as indemnification for such payment or for any other expenses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction to be liable by reason of Disabling Conduct.

Exceptions to Indemnification. Indemnification Director shall not be provided entitled to a Covered Person indemnification under Sections 7(a) and 7(b) above in all circumstances other than the following: (a) If indemnification is requested under Section 6.4 if 7(a) and it shall have has been fully adjudicated in finally by a decision on the merits by the court or other arbitral body before of competent jurisdiction that, in connection with the subject of the Proceeding out of which the proceeding was brought that such Covered Person claim for indemnification has arisen, (i) did not the Independent Director failed to act in good faith and in a manner the reasonable belief that such Covered Person’s action was Independent Director reasonably believed to be in or not opposed to the best interests of the Trust or (ii) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “Disabling Conduct”). As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final adjudication in a decision on the merits that such Covered Person is liable by reason of Disabling Conduct, indemnification shall be provided if there has been (i) a determination by the court or other body before which the proceeding was brought that the Covered Person was not liable by reason of Disabling ConductCompany, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conductthe Independent Director had reasonable cause to believe that the Independent Director’s conduct was unlawful, or (iii) a reasonable determinationthe Independent Director’s conduct constituted willful misconduct, based upon a review fraud or knowing violation of law, then the readily available facts (as opposed to a full trial-type inquiry), that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person Independent Director shall not prevent the recovery from the Covered Person be entitled to payment of any amount paid to such Covered Person as Indemnifiable Amounts hereunder. (b) If indemnification for such payment or for any other expenses if such Covered Person is subsequently requested under Section 7(b) and (i) it has been adjudicated finally by a court or arbitral body of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, the Independent Director failed to act in good faith and in a manner the Independent Director reasonably believed to be in or not opposed to the best interests of the Company, including without limitation, the breach of Section 4 hereof by the Independent Director, the Independent Director shall not be entitled to payment of Indemnifiable Expenses hereunder; or (ii) it has been adjudicated finally by a court or arbitral body of competent jurisdiction that the Independent Director is liable by reason to the Company with respect to any claim, issue or matter involved in the Proceeding out of Disabling Conductwhich the claim for indemnification has arisen, including, without limitation, a claim that the Independent Director received an improper benefit or improperly took advantage of a corporate opportunity, the Independent Director shall not be entitled to payment of Indemnifiable Expenses hereunder with respect to such claim, issue or matter. 4 9.

Exceptions to Indemnification. Indemnification Director shall not be provided entitled to a Covered Person indemnification under Sections 7(a) and 7(b) above in all circumstances other than the following: (a) If indemnification is requested under Section 6.4 if 7(a) and it shall have has been fully adjudicated in finally by a decision on the merits by the court or other arbitral body before of competent jurisdiction that, in connection with the subject of the Proceeding out of which the proceeding was brought that such Covered Person claim for indemnification has arisen, (i) did not the Independent Director failed to act in good faith and in a manner the reasonable belief that such Covered Person’s action was Independent Director reasonably believed to be in or not opposed to the best interests of the Trust or (ii) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “Disabling Conduct”). As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final adjudication in a decision on the merits that such Covered Person is liable by reason of Disabling Conduct, indemnification shall be provided if there has been (i) a determination by the court or other body before which the proceeding was brought that the Covered Person was not liable by reason of Disabling ConductCompany, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conductthe Independent Director had reasonable cause to believe that the Independent Director's conduct was unlawful, or (iii) a reasonable determinationthe Independent Director's conduct constituted willful misconduct, based upon a review fraud or knowing violation of law, then the readily available facts (as opposed to a full trial-type inquiry), that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person Independent Director shall not prevent the recovery from the Covered Person be entitled to payment of any amount paid to such Covered Person as Indemnifiable Amounts hereunder. (b) If indemnification for such payment or for any other expenses if such Covered Person is subsequently requested under Section 7(b) and (i) it has been adjudicated finally by a court or arbitral body of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, the Independent Director failed to act in good faith and in a manner the Independent Director reasonably believed to be in or not opposed to the best interests of the Company, including without limitation, the breach of Section 4 hereof by the Independent Director, the Independent Director shall not be entitled to payment oflndemnifiable Expenses hereunder; or (ii) it has been adjudicated finally by a court or arbitral body of competent jurisdiction that the Independent Director is liable by reason to the Company with respect to any claim, issue or matter involved in the Proceeding out of Disabling Conduct.which the claim for indemnifi. cation has arisen, including, without limitation, a claim that the Independent Director received an improper benefit or improperly took advantage of a corporate opportunity, the Independent Director shall not be entitled to payment of lndemnifiable Expenses hereunder with respect to such claim, issue or matter. 20820869.1 2Jn60-10001 4

Exceptions to Indemnification. Indemnification shall not be provided to a Covered Person under Section 6.4 if it shall have been fully finally adjudicated in a decision on the merits by the court or other body before which the proceeding was brought that such Covered Person (i) did not act in good faith in the reasonable belief that such Covered Person’s 's action was in the best interests of the Trust or (ii) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s 's office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “"Disabling Conduct”"). As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final adjudication in a decision on the merits that such Covered Person is liable by reason of Disabling Conduct, indemnification shall be provided if there has been (i) a determination by the court or other body before which the proceeding was brought that the Covered Person was not liable by reason of Disabling Conduct, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable determination, based upon a review of the readily available facts (as opposed to a full trial-type inquiry), that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person shall not prevent the recovery from the Covered covered Person of any amount paid to such Covered Person as indemnification for such payment or for any other expenses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction to be liable by reason of Disabling Conduct.

Exceptions to Indemnification. Indemnification The Indemnitee shall be entitled to indemnification under Section 3, provided, however, that the Company shall not be provided indemnify or advance Expenses to a Covered Person Indemnitee with respect to any act, event or circumstance with respect to which it is prohibited to do so under applicable law (including the Companies Law) or the Articles. Further the indemnity in Section 6.4 if it 3 shall have been fully adjudicated in a decision on the merits not apply to any liability incurred by the court or other body before which the proceeding was brought that such Covered Person Indemnitee (i) did not act in good faith defending any criminal action or proceeding in which the Indemnitee is convicted, except to the extent it is determined by the Board, in its reasonable opinion, that the Indemnitee had reasonable cause to believe that the Indemnitee’s action was lawful; (ii) in connection with any application pursuant to section 212 of the Companies Law (a “Relevant Application”) in which the court refuses to grant the Indemnitee relief; (iii) in the event that the liability incurred by the Indemnitee is, in the reasonable belief that such Covered Person’s action was in the best interests opinion of the Trust Board, a result of fraud or wilful misconduct by the Indemnitee; or (iiiv) is liable to in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Trust Company or its Shareholders by reason directors, officers, employees or other indemnitees, unless (a) the Board authorized the Proceeding (or any part of willful misfeasanceany Proceeding) prior to its initiation or (b) the Company provides the indemnification, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “Disabling Conduct”). As to any matter disposed of (whether by a compromise paymentits sole discretion, pursuant to a consent decree or otherwise) without a final adjudication the powers vested in a decision on the merits Company under applicable law and the Articles. The Company and the Indemnitee acknowledge and agree that such Covered Person is liable by reason of Disabling Conduct, indemnification nothing in this Section 4 shall be provided if there has been (i) a determination by preclude the court or other body before which Indemnitee from making claims against the proceeding was brought that Company to enforce the Covered Person was not liable by reason of Disabling Conduct, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable determination, based upon a review of the readily available facts (as opposed to a full trial-type inquiry), that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person shall not prevent the recovery from the Covered Person of any amount paid to such Covered Person as indemnification for such payment or for any other expenses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction to be liable by reason of Disabling ConductIndemnitee’s rights under this Agreement.

Exceptions to Indemnification. Indemnification shall not be ----------------------------- provided to a Covered Person under Section 6.4 if it shall have been fully finally adjudicated in a decision on the merits by the court or other body before which the proceeding was brought that such Covered Person (i) did not act in good faith in the reasonable belief that such Covered Person’s 's action was in the best interests of the Trust or (ii) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s 's office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “"Disabling Conduct”"). As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final adjudication in a decision on the merits that such Covered Person is liable by reason of Disabling Conduct, indemnification shall be provided if there has been (i) a determination by the court or other body before which the proceeding was brought that the Covered Person was not liable by reason of Disabling Conduct, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable determination, based upon a review of the readily available facts (as opposed to a full trial-type inquiry)facts, that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person shall not prevent the recovery from the Covered Person of any amount paid to such Covered Person as indemnification for such payment or for any other expenses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction to be liable by reason of Disabling Conduct.

Exceptions to Indemnification. Indemnification shall not ----------------------------- be provided to a Covered Person under Section 6.4 if it shall have been fully finally adjudicated in a decision on the merits by the court or other body before which the proceeding was brought that such Covered Person (i) did not act in good faith in the reasonable belief that such Covered Person’s 's action was in the best interests of the Trust or (ii) is liable to the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such Covered Person’s 's office (either and both of the conduct described in (i) and (ii) being referred to hereafter as “"Disabling Conduct”"). As to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without a final adjudication in a decision on the merits that such Covered Person is liable by reason of Disabling Conduct, indemnification shall be provided if there has been (i) a determination by the court or other body before which the proceeding was brought that the Covered Person was not liable by reason of Disabling Conduct, (ii) a dismissal of a court action or any administrative or other proceeding against a Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable determination, based upon a review of the readily available facts (as opposed to a full trial-type inquiry)facts, that the Covered Person was not liable by reason of Disabling Conduct either by a vote of a majority of a quorum of disinterested Trustees who are not parties to the proceeding, or by an independent legal counsel in a written opinion. Approval by the Trustees or by independent legal counsel of indemnification as to any matter disposed of by a compromise payment by the Covered Person shall not prevent the recovery from the Covered Person of any amount paid to such Covered Person as indemnification for such payment or for any other expenses if such Covered Person is subsequently adjudicated by a court of competent jurisdiction to be liable by reason of Disabling Conduct.