Common use of Exculpation and Indemnification of the Equityholder Representative Clause in Contracts

Exculpation and Indemnification of the Equityholder Representative. The Equityholder Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Equityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. Each Equityholder (and each Equityholder’s successors and permitted assigns) will indemnify, defend, protect and hold harmless the Equityholder Representative against any losses, liabilities, expenses, and damages (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Equityholder Representative, the Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Equityholder Representative from (i) the funds in the Equityholder Representative Fund and (ii) any other funds that become payable to the Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, that while the Equityholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Equityholder Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative hereunder. Each Equityholder’s (and each Equityholder’s successors’ and permitted assigns’) obligations, including the foregoing indemnities, with respect to the Equityholder Representative under this Section 8.4 will survive the Closing the resignation or removal of the Equityholder Representative or the termination of this Agreement and continue indefinitely (and will not merge into any instrument of conveyance or be limited in duration by any applicable statute of limitations or otherwise). The Equityholder Representative will be entitled to retain counsel and to incur such expenses (including court costs and attorneys’ fees and expenses) as the Equityholder Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement. All fees and expenses incurred by the Equityholder Representative in performing its duties hereunder or the Paying Agent Agreement will be borne by the Equityholders and their respective successors and permitted assigns (severally as to each Equityholder (or such Equityholder’s successor or permitted assigns) only and not jointly as to or with any other Equityholder (or such Equityholder’s successor or permitted assigns)); provided, however, that the Equityholder Representative may cause Purchaser, the Surviving Company or the Paying Agent, as applicable, to deduct such fees and expenses from the amounts otherwise distributable to Equityholders or their respective successors and permitted assigns and pay such amounts to the Equityholder Representative. In particular, the Equityholders acknowledge that the Equityholder Representative Payment is being deposited by Purchaser, upon the Closing, into any account designated by the Equityholder Representative in accordance with the terms of this Agreement, to pay the fees and expenses of the Equityholder Representative hereunder, and to provide for indemnification of the Equityholder Representative under this Section 8.4.

Exculpation and Indemnification of the Equityholder Representative. The Equityholder Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Equityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. Each Equityholder (and each Equityholder’s successors and permitted assigns) will indemnify, defend, protect and hold harmless the Equityholder Representative against any losses, liabilities, expenses, and damages (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Equityholder Representative, the Equityholder Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Equityholder Representative from (i) the funds in the Equityholder Representative Fund and (ii) any other funds that become payable to the Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, that while the Equityholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Equityholder Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse 157437977.10 against non-parties otherwise applicable to, the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Equityholder Representative hereunder. Each Equityholder’s (and each Equityholder’s successors’ and permitted assigns’) obligations, including the foregoing indemnities, with respect to the Equityholder Representative under this Section 8.4 will survive the Closing the resignation or removal of the Equityholder Representative or the termination of this Agreement and continue indefinitely (and will not merge into any instrument of conveyance or be limited in duration by any applicable statute of limitations or otherwise). The Equityholder Representative will be entitled to retain counsel and to incur such expenses (including court costs and attorneys’ fees and expenses) as the Equityholder Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement. All fees and expenses incurred by the Equityholder Representative in performing its duties hereunder or the Paying Agent Agreement will be borne by the Equityholders and their respective successors and permitted assigns (severally as to each Equityholder (or such Equityholder’s successor or permitted assigns) only and not jointly as to or with any other Equityholder (or such Equityholder’s successor or permitted assigns)); provided, however, that the Equityholder Representative may cause Purchaser, the Surviving Company or the Paying Agent, as applicable, to deduct such fees and expenses from the amounts otherwise distributable to Equityholders or their respective successors and permitted assigns and pay such amounts to the Equityholder Representative. In particular, the Equityholders acknowledge that the Equityholder Representative Payment is being deposited by Purchaser, upon the Closing, into any account designated by the Equityholder Representative in accordance with the terms of this Agreement, to pay the fees and expenses of the Equityholder Representative hereunder, and to provide for indemnification of the Equityholder Representative under this Section 8.4.