Common use of Indemnification of Covered Persons Clause in Contracts

Indemnification of Covered Persons. (a) Parent and Merger Sub agree that all rights to indemnification existing as of the date of this Agreement for acts or omissions occurring on or prior to the Effective Time in favor of the current or former managers, directors, officers or other employees of the Company and each of its Subsidiaries currently indemnified by the Company or any of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior to the Effective Time. (b) At or prior to the Effective Time, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those in effect under the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit of the Covered Persons with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Time. (c) The provisions of this Section 4.17 are (i) intended to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. (d) The obligations of Parent and the Surviving Entity pursuant to this Section 4.17 (A) will be subject to the limitations imposed by applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent 16.2.1 Each GP Covered Person shall be indemnified and Merger Sub agree held harmless by the Fund, from and against any and all Damages that all rights to indemnification existing it suffers or incurs as a result of the date of this Agreement for acts or omissions occurring conducted by it on behalf of the Fund or prior its management of the affairs of the Fund. Notwithstanding the foregoing, no GP Covered Person shall be indemnified for or be held harmless from any Damages to the Effective Time extent such Damages are based upon, arise out of or are otherwise in favor connection with an Indemnification Exclusion Event. In all cases, no GP Covered Person shall be indemnified or held harmless hereunder without first using bestreasonable efforts to be indemnified by, held harmless or otherwise reimbursed from other available sources (including Portfolio Companies and insurance coverage of either a Portfolio Company or as provided for pursuant to Section 13.6 (Insurance.), to the current or former managers, directors, officers or fullest extent permitted by applicable law). Any indemnification amount paid hereunder shall be reduced by amounts received from such other employees of the Company sources and each of its Subsidiaries currently indemnified by the Company or GP Covered Person shall refund any of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior payments to the Effective Timeextent of amounts subsequently received from such other sources. (b) At 16.2.2 Each ACLPAC Covered Person shall be indemnified and held harmless by the Fund from and against any and all Damages suffered or prior incurred by any of them as a result of acts or omissions of the LP Advisory Committee or any member thereofof its members. Notwithstanding the foregoing, no ACLPAC Covered Person shall be entitled to indemnification hereunder against any Damages to the Effective Timeextent found by a court to be based upon, arise out of or otherwise are in connection with the bad faith of the relevant Advisory Committee member. For the avoidance of doubt, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period actions or omissions of six years from an Advisory Committee member made in the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those in effect under the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit interest of the Covered Persons Limited Partner associated with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective TimesuchLP Advisory Committee member shall not be deemed bad faith. (c) The provisions 16.2.3 Expenses incurred by a Covered Person in defending a claim or proceeding may be paid by the Fund in advance of this Section 4.17 are the final disposition of such claim or proceeding; provided that (i) intended the Covered Person undertakes to repay such amount if it is ultimately determined that such Person was not entitled to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17indemnified, and (ii) no expenses may be advanced to any Covered Person named as a party in addition toany action brought by (A) the Covered Person, and (B) any Person not at arm’s length from such Covered Person against the Fund, or (C) by the Fund against the Covered Person or on behalf of [ ]%Majority in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseInterest of Limited Partners. (d) 16.2.4 The obligations General Partner shall promptly report the commencement of Parent and the Surviving Entity pursuant to any Proceeding or any claim for indemnification under this Section 4.17 16.2 (A) will be subject Indemnification of Covered Persons.), and theits material details and developments in respect thereof, to the limitations imposed by applicable lawLimited Partners. (e) 16.2.5 Except as otherwise provided herein, the provisions of thisThis Section 16.2 (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent To the fullest extent permitted by law, the Partnership shall indemnify and Merger Sub agree that all rights to indemnification existing as hold harmless each of the date Covered Persons from and against any and all claims, liabilities, damages, losses, costs and expenses (including amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and legal or other costs and reasonable expenses of investigating or defending against any claim or alleged claim) of any nature whatsoever, known or unknown, liquidated or unliquidated, that are incurred by any Covered Person and arise out of or in connection with the affairs of the Partnership or any Subsidiary or the performance by such Covered Person of any of the General Partner’s responsibilities hereunder or otherwise in connection with the matters contemplated herein unless it is determined by any court, governmental body of competent jurisdiction or arbitrator or arbitration panel in a final, non-appealable judgment or award, or admitted by such Covered Person in a settlement of any lawsuit, that such Covered Person’s conduct did constitute fraud, gross negligence or willful malfeasance by such Covered Person. The termination of any Proceeding by settlement, judgment, order, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that such Covered Person’s conduct constituted fraud, gross negligence, willful malfeasance or a willful violation of the material provisions of this Agreement for acts or omissions occurring on or prior to the Effective Time in favor of the current or former managers, directors, officers or other employees of the Company and each of its Subsidiaries currently indemnified by the Company or any of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective TimeManagement Agreement, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior to the Effective Timeas applicable). (b) At or prior to The Partnership shall pay the Effective Time, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” expenses incurred by any such Person indemnifiable hereunder in connection with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those any proceeding in effect under the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit advance of the Covered Persons with respect final disposition, so long as the Partnership receives an undertaking by such Person to their acts and omissions repay the full amount advanced if there is a final determination that such Person did not satisfy the standards set forth in Section 13.2(a) above or that such Person is not entitled to indemnification as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Timeprovided herein for other reasons. (c) The provisions General Partner shall have the power on behalf of this Section 4.17 are (i) intended the Partnership to be for purchase and maintain insurance in reasonable amounts on behalf of the benefit ofCovered Persons against any liability incurred by them in their capacities as such, and will be specifically enforceable by, each Covered Person, and each whether or not the Partnership has the power to indemnify them against such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwiseliability. (d) The provisions of this Section 13.2 shall continue to afford protection to each Covered Person regardless of whether such Covered Person remains in the position or capacity pursuant to which such Covered Person became entitled to indemnification under this Section 13.2 and regardless of any subsequent amendment to this Agreement, and no amendment to this Agreement shall reduce or restrict the extent to which these indemnification provisions apply to actions taken or omissions made prior to the date of such amendment. (e) If the General Partner determines that it is necessary, desirable or appropriate to do so, the General Partner may cause the Partnership to establish reasonable reserves, escrow accounts or similar accounts to fund the Partnership’s obligations under this Section 13.2. (f) The obligations of Parent and the Surviving Entity each Partner pursuant to this Section 4.17 (A) will be subject to Article XIII shall survive the limitations imposed by applicable lawtermination and expiration of this Agreement and the dissolution, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director winding-up and termination of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related AgreementPartnership.

Indemnification of Covered Persons. (a) Parent Each GP Covered Person shall be indemnified and Merger Sub agree held harmless by the Fund, from and against any Damages that all rights to indemnification existing it suffers or incurs as a result of the date of this Agreement for acts or omissions occurring conducted by it on behalf of the Fund or prior its management of the affairs of the Fund. Notwithstanding the foregoing, no GP Covered Person shall be indemnified for or be held harmless from any Damages to the Effective Time extent such Damages are based upon, arise out of or are otherwise in favor connection with an Indemnification Exclusion Event. In all cases, no GP Covered Person shall be indemnified or held harmless hereunder without first using reasonable efforts to be indemnified by, held harmless or otherwise reimbursed from other available sources (including Portfolio Companies and insurance coverage of either a Portfolio Company or as provided for pursuant to Section 13.6 (Insurance.), to the fullest extent permitted by applicable law). Any indemnification amount paid hereunder shall be reduced by amounts received from such other sources and each GP Covered Person shall refund any indemnification payments to the extent of amounts subsequently received from such other sources. Each LPAC Covered Person shall be indemnified and held harmless by the Fund from and against any Damages suffered or incurred by any of them as a result of acts or omissions of the current or former managers, directors, officers or other employees of the Company and each of its Subsidiaries currently indemnified by the Company LP Advisory Committee or any of its Subsidiaries (collectivelymembers. Notwithstanding the foregoing, no LPAC Covered Person shall be entitled to indemnification hereunder against any Damages to the “extent found by a court to be based upon, arise out of or otherwise are in connection with the bad faith of the relevant LP Advisory Committee member. Expenses incurred by a Covered Persons”) as provided by statute Person in defending a claim or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated proceeding may be paid by the terms of this Agreement and will continue Fund in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations advance of the Company and its Subsidiaries for acts final disposition of such claim or omissions by such Covered Persons occurring on or prior to the Effective Time. (b) At or prior to the Effective Time, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those in effect under the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit of the Covered Persons with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Time. (c) The provisions of this Section 4.17 are proceeding; provided that (i) intended the Covered Person undertakes to repay such amount if it is ultimately determined that such Person was not entitled to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17indemnified, and (ii) no expenses may be advanced to any Covered Person named as a party in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have action brought by contract or otherwise. (d) The obligations of Parent and the Surviving Entity pursuant to this Section 4.17 (A) will be subject to the limitations imposed by applicable lawCovered Person, (B) do any Person not release any Indemnifying Securityholder at arm’s length from such Covered Person against the Fund, or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require by the Surviving Entity Fund against the Covered Person or Parent to advance expenses to an individual on behalf of Majority in respect Interest of Limited Partners. The General Partner shall promptly report the commencement of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement Proceeding or any Related Agreementclaim for indemnification under this Section 16.2 (Indemnification of Covered Persons.), and its material details and developments, to the Limited Partners.

Indemnification of Covered Persons. (ai) Parent The debts, obligations and Merger Sub agree liabilities of Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of Company, and neither the Members nor any Covered Person shall be obligated personally for any such debt, obligation or liability of Company solely by reason of being a Member or Covered Person; provided that all rights to indemnification existing as this shall not limit or preclude liability of the date of this Agreement for acts or omissions occurring on or prior a Covered Person who is a service provider to the Effective Time Company in favor accordance with the terms of the current or former managers, directors, officers any applicable contract or other employees of the Company and each of its Subsidiaries currently indemnified by the applicable law. (ii) No Covered Person shall be liable to Company or any Company-Owned Entity or any other Covered Person for any loss, damage or claim incurred by reason of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute any act or in their respective constitutional documents omission performed or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions omitted by such Covered Persons occurring Person in good faith on behalf of Company or prior any Company-Owned Entity and in a manner reasonably believed to be within the authority of such Covered Person and in the interests of the Company. No Covered Person shall be liable for any act or omission or mistake of judgment unless the same (A) constituted bad faith, gross negligence or willful misconduct, or (B) was in breach of an express provision of this Agreement, subject to the Effective Timeprovisions set forth in the last clause of Section 3.01(f)(i). (biii) At Each Covered Person shall be entitled to be indemnified by Company for any loss, damage or prior claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of Company or any Company-Owned Entity and in a manner reasonably believed to be within the authority of such Covered Person and in the interests of the Company; provided, however, that any indemnity permitted under this Section 3.01(f) shall be provided out of and to the Effective Timeextent of Company assets only, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable shall be limited to the Covered Persons than those in effect full extent allowed under the Company’s existing directors’ and officers’ liability insurance policy Act, shall not be available in effect cases of gross negligence, fraud or willful misconduct on the date hereof, for the benefit part of the Covered Persons with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Time. (c) The provisions of this Section 4.17 are (i) intended to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries no Member shall have any personal liability on account of this indemnity. To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding in respect of which such Covered Person is entitled to be indemnified as provided in this Section 4.173.01(f) shall, and (ii) in addition tofrom time to time, and be advanced by Company upon receipt by Company of an adequate undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not in substitution for, any other rights entitled to indemnification or contribution that any such Person may have by contract or otherwise. (d) The obligations of Parent and the Surviving Entity be indemnified pursuant to this Section 4.17 (A) will be subject to the limitations imposed by applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof3.01(f); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent The Company shall indemnify and Merger Sub agree hold harmless a Covered Person to the fullest extent permitted under the Delaware Act, as the same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Company is providing immediately prior to such amendment), against all rights to indemnification existing as expenses, liabilities and losses (including attorneys’ fees, judgments, fines, excise taxes or penalties) reasonably incurred or suffered by such Covered Person (or one or more of such Person’s Affiliates) in connection with, relating to, or arising out of the date of this Agreement for acts or omissions occurring on or prior to the Effective Time in favor business and operations of the current Company; provided that no Covered Person shall be indemnified for any expenses, liabilities and losses suffered or former managersincurred that are attributable to such Person’s gross negligence, directorswillful misconduct or knowing violation of law or this Agreement. Expenses, officers or other employees including attorneys’ fees, incurred by any such Indemnified Person in defending a proceeding shall be paid by the Company in advance of the Company and each final disposition of its Subsidiaries currently such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that such Covered Person is not entitled to be indemnified by the Company or any of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior to the Effective TimeCompany. (b) At or prior Notwithstanding anything contained herein to the Effective Timecontrary (including in this Section 10.2), any indemnity by the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable relating to the Covered Persons than those matters covered in effect under this Section 10.2 shall be provided out of and to the extent of Company assets only and, no Member (unless such Member otherwise agrees in writing or is found in a final decision by a court of competent jurisdiction to have personal liability on account thereof) shall have personal liability on account thereof or (except as required pursuant to Section 4.7(c)) shall be required to make additional Capital Contributions or loans to help satisfy such indemnity of the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit of the Covered Persons with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Time. (c) The provisions of this Section 4.17 are (i) intended to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. (d) The obligations of Parent and the Surviving Entity pursuant to this Section 4.17 (A) will be subject to the limitations imposed by applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent The Company shall indemnify, to the fullest extent permitted by applicable law, any person who was or is a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise, and Merger Sub agree that all rights to indemnification existing as whether by or in the right of the date of this Agreement for acts Company, its members, a third party or omissions occurring on or prior to the Effective Time in favor otherwise (a “Proceeding”), by reason of the current fact that he/she is or former managerswas an officer, directors, officers director or other employees employee of the Company and each Company, or trustee or administrator of its Subsidiaries currently indemnified by the Company or any of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior to the Effective Time. (b) At or prior to the Effective Time, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those in effect under the Company’s existing directorsemployee plans (each a “Covered Person”), against all expense (including, but not limited to, attorneys’ fees), liability, loss, judgments, fines, excise taxes, penalties and officers’ liability insurance policy amounts paid in effect on the date hereofsettlement actually and reasonably incurred by him/her in connection with such Proceeding, for the benefit of the Covered Persons including expenses incurred in seeking such indemnification. However, such indemnification shall exclude (i) indemnification with respect to their acts any improper personal benefit which the Covered Person is determined to have received and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to expenses of defending against an improper personal benefit claim unless the Effective Time. (c) The provisions of this Section 4.17 are (i) intended to be for Covered Person is successful on the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17merits in said defense, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such of a Covered Person may have by contract or otherwise. (d) The obligations of Parent and the Surviving Entity pursuant to this Section 4.17 (A) will be subject to the limitations imposed by applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any their activities prior to said transaction, unless specifically authorized by the managers or Sole Member of this Company. Such indemnification payments shall include prompt payment of expenses incurred by a Covered Person in defending a Proceeding in advance of the final disposition of such Proceeding, upon receipt of an undertaking by or on behalf of the Covered Person to repay such amounts if it shall ultimately be determined that such Indemnifying Securityholder he is required not entitled to pay be indemnified by the Company under this Article XI, which undertaking shall be an unsecured general obligation of the Covered Person and may be accepted without regard to an Indemnified Person pursuant his ability to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreementmake repayment.

Indemnification of Covered Persons. Each Covered Person (aregardless of such person’s capacity and regardless of whether another Covered Person is entitled to indemnification) Parent shall be indemnified and Merger Sub agree that all rights held harmless by the Partnership (but only to indemnification existing as the extent of the date of this Agreement for acts or omissions occurring on or prior Partnership’s assets), to the Effective Time fullest extent permitted under applicable law, from and against any and all loss, liability and expense (including taxes; penalties; judgments; fines; amounts paid or to be paid in favor settlement; costs of investigation and preparations; and fees, expenses and disbursements of attorneys, whether or not the dispute or proceeding involves the Partnership or a Partner) reasonably incurred or suffered by any such Covered Person in connection with the activities of the current Partnership or former managersits subsidiaries; provided, directorshowever, officers or other employees such Covered Person shall not be so indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the Company matter for which such Covered Person is seeking indemnification or seeking to be held harmless hereunder, and each taking into account the acknowledgments and agreements set forth in this Agreement, such Covered Person engaged in a bad faith violation of its Subsidiaries currently the implied contractual covenant of good faith and fair dealing Section 17-1101 of the Act, engaged in fraud or, in the case of a criminal matter, acted with knowledge that such Covered Person’s conduct was unlawful or, without limiting the foregoing, in the case of an authorized person, such authorized person breached such authorized person’s duty of loyalty to the Partnership; provided, further, that any such Covered Person that is an Officer (in such person’s capacity as such) shall not be indemnified by the Company Partnership if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which such Covered Person is seeking indemnification or any seeking to be held harmless hereunder, if the Partnership were a corporation organized under the laws of its Subsidiaries the State of Delaware, then the Partnership would not be permitted under the laws of the State of Delaware to indemnify such Covered Person (collectivelyin such Covered Person’s capacity as an officer) from liability for such act or omission; provided, further, that such indemnification shall not apply if the “Covered Persons”applicable action or proceeding has been brought by or in the right of the Partnership (whether directly or by counterclaim) as except with respect to expenses to the extent provided in this Section 25. The indemnification provided by statute this Section 25 shall be in addition to any other rights to which a Covered Person may be entitled under any agreement, as a matter of law or otherwise, both as to actions in such Covered Person’s capacity as a Covered Person hereunder and as to actions in any other capacity, and shall continue as to a Covered Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of such Covered Person. A Covered Person shall not be denied indemnification in whole or in their respective constitutional documents or part under this Section 25 because such Covered Person had an interest in the indemnity agreements listed on Schedule 4.17 will survive transaction with respect to which the transactions contemplated indemnification applies if the transaction was otherwise permitted by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior to the Effective Time. (b) At or prior to the Effective Time, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those in effect under the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit of the Covered Persons with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Time. (c) The provisions of this Section 4.17 are (i) intended to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17, and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. (d) The obligations of Parent and the Surviving Entity pursuant to this Section 4.17 (A) will be subject to the limitations imposed by applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent Each Person who was or is made a party to or is threatened to be made a party to or is otherwise involved in any action, suit, arbitration or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that such Person is or was a Covered Person or is or was serving at the request of the Fund as a manager, director, trustee, officer, employee or agent of another Person in which the Fund has or had any interest as a shareholder, creditor or otherwise (hereinafter an "indemnitee"), whether the basis for such proceeding is alleged action in an official capacity as a Covered Person or as a manager, director, trustee, officer, employee or agent of another Person or in any other capacity while serving as such, shall be indemnified and Merger Sub agree held harmless by the Fund from and against any and all demands, claims, expenses, liabilities and losses whatsoever (including, without limitation, attorneys' fees, judgments, fines, penalties and amounts paid in settlement) incurred or suffered by such indemnitee in connection therewith; provided that all rights no indemnification shall be provided under this Section 13.1(a) for any indemnitee with respect to any matter as to which it shall ultimately be determined by final judicial decision from which there is no further right of appeal (hereinafter a "final adjudication") that such indemnitee did not act in good faith in the reasonable belief that his action was in the best interest of the Fund and therefore is not entitled to indemnification existing as of the date of this Agreement for acts or omissions occurring on or prior to the Effective Time in favor of the current or former managers, directors, hereunder. It is understood and agreed that officers or other and employees of the Company and each Manager or the Investment adviser who serve as officers, directors or trustees of its Subsidiaries currently indemnified by the Company BRC or any other subsidiary of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or Fund are serving in their respective constitutional documents or such capacity at the indemnity agreements listed on Schedule 4.17 will survive request of the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective TimeFund, and Parent will, and will cause that BMR is serving as manager of BRC at the Surviving Entity to, honor the foregoing indemnification obligations request of the Company Fund. To the extent that the Act is hereafter amended to permit broader or more complete indemnification rights to any such indemnitee, then this Section 13.1(a) shall be deemed and its Subsidiaries for acts construed to permit such broader or omissions by such Covered Persons occurring on or prior to the Effective Timemore complete indemnification rights. (b) At or prior The indemnification rights conferred in Section 13.1(a) shall include the right to be paid by the Fund all expenses (including, without limitation, attorneys' fees) incurred in defending any such proceeding in advance of its final disposition upon receipt of an undertaking by such indemnitee to repay all amounts so advanced if a final adjudication shall have determined that such indemnitee is not entitled to indemnification hereunder. The Fund shall be entitled to accept such undertaking without reference to the Effective Time, the Company will purchase a prepaid directors’ financial ability of such indemnitee to make repayment. The rights to indemnification and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the advancement of expenses conferred in Section 13.1(a) and 13.1(b) shall be contract rights and such rights shall continue as to any indemnitee who has ceased to be a Covered Persons than those in effect under Person (or who has ceased to serve at the Company’s existing directors’ request of the Fund as a director, trustee, officer, employee or agent of another Person) and officers’ liability insurance policy in effect on the date hereof, for shall inure to the benefit of the Covered Persons with respect to their acts indemnitee's heirs, executors, administrators, successors and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Timeassigns. (c) The provisions In any action brought by an indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Fund to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section 4.17 are 13.1 or otherwise shall be on the Fund. (id) intended to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17, and (ii) in addition to, and not in substitution for, any other The rights to indemnification or contribution that and to the advancement of expenses conferred in this Section 13.1 shall not be exclusive of any such other right which any Person may have by or hereafter acquire under any statute, amendment or restatement of this Agreement, the By-Laws, contract or otherwise. (de) The obligations of Parent and Fund may maintain insurance, at its expense, to protect itself, the Surviving Entity pursuant Manager, the Investment Adviser, any indemnitee, the Shareholders or any other Person against any claim, expense, liability or loss, whether or not the Fund would have the power to this Section 4.17 (A) will be subject to the limitations imposed by indemnify any such Person against such claim, expense, liability or loss under applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent Each Person who was or is made a party to or is threatened to be made a party to or is otherwise involved in any action, suit, arbitration or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that such Person is or was a Covered Person or is or was serving at the request of the Fund as a manager, director, trustee, officer, employee or agent of another Person in which the Fund has or had any interest as a shareholder, creditor or otherwise (hereinafter an "indemnitee"), whether the basis for such proceeding is alleged action in an official capacity as a Covered Person or as a manager, director, trustee, officer, employee or agent of another Person or in any other capacity while serving as such, shall be indemnified and Merger Sub agree held harmless by the Fund from and against any and all demands, claims, expenses, liabilities and losses whatsoever (including, without limitation, attorneys' fees, judgments, fines, penalties and amounts paid in settlement) incurred or suffered by such indemnitee in connection therewith; provided that all rights no indemnification shall be provided under this Section 13.1(a) for any indemnitee with respect to any matter as to which it shall ultimately be determined by final judicial decision from which there is no further right of appeal (hereinafter a "final adjudication") that such indemnitee did not act in good faith in the reasonable belief that his action was in the best interest of the Fund and therefore is not entitled to indemnification existing as of the date of this Agreement for acts or omissions occurring on or prior to the Effective Time in favor of the current or former managers, directors, hereunder. It is understood and agreed that officers or other and employees of the Company and each Manager or the Investment Adviser who serve as officers, directors or trustees of its Subsidiaries currently indemnified by the Company BRC, BIC or any other Subsidiary of its Subsidiaries (collectively, the “Covered Persons”) as provided by statute or Fund are serving in their respective constitutional documents or such capacity at the indemnity agreements listed on Schedule 4.17 will survive request of the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective TimeFund, and Parent willthat BMR is serving as manager of BRC, BIC and will cause other Subsidiaries at the Surviving Entity to, honor the foregoing indemnification obligations request of the Company Fund. To the extent that the Act is hereafter amended to permit broader or more complete indemnification rights to any such indemnitee, then this Section 13.1(a) shall be deemed and its Subsidiaries for acts construed to permit such broader or omissions by such Covered Persons occurring on or prior to the Effective Timemore complete indemnification rights. (b) At or prior The indemnification rights conferred in Section 13.1(a) shall include the right to be paid by the Fund all expenses (including, without limitation, attorneys' fees) incurred in defending any such proceeding in advance of its final disposition upon receipt of an undertaking by such indemnitee to repay all amounts so advanced if a final adjudication shall have determined that such indemnitee is not entitled to indemnification hereunder. The Fund shall be entitled to accept such undertaking without reference to the Effective Time, the Company will purchase a prepaid directors’ financial ability of such indemnitee to make repayment. The rights to indemnification and officers’ liability insurance “run-off policy” with a claims period of six years from the Closing Date, and on terms and conditions no less favorable to the advancement of expenses conferred in Section 13.1(a) and 13.1(b) shall be contract rights and such rights shall continue as to any indemnitee who has ceased to be a Covered Persons than those in effect under Person (or who has ceased to serve at the Company’s existing directors’ request of the Fund as a director, trustee, officer, employee or agent of another Person) and officers’ liability insurance policy in effect on the date hereof, for shall inure to the benefit of the Covered Persons with respect to their acts indemnitee's heirs, executors, administrators, successors and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Timeassigns. (c) The provisions In any action brought by an indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Fund to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section 4.17 are 13.1 or otherwise shall be on the Fund. (id) intended to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries of this Section 4.17, and (ii) in addition to, and not in substitution for, any other The rights to indemnification or contribution that and to the advancement of expenses conferred in this Section 13.1 shall not be exclusive of any such other right which any Person may have by or hereafter acquire under any statute, amendment or restatement of this Agreement, the By-Laws, contract or otherwise. (de) The obligations of Parent and Fund may maintain insurance, at its expense, to protect itself, the Surviving Entity pursuant Manager, the Investment Adviser, any indemnitee, the Shareholders or any other Person against any claim, expense, liability or loss, whether or not the Fund would have the power to this Section 4.17 (A) will be subject to the limitations imposed by indemnify any such Person against such claim, expense, liability or loss under applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement.

Indemnification of Covered Persons. (a) Parent Each Covered Person shall be indemnified by the Trust to the fullest extent permitted by law against any losses, judgments, liabilities, expenses, and Merger Sub agree amounts paid in settlement of any claims sustained by it in connection with its activities for the Trust, except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any action, suit, or other proceeding not to have acted in good faith in the reasonable belief that all such Covered Person’s action was in the best interest of the Trust and except that no Covered Person shall be indemnified against any liability to the Trust or to the Limited Owners by reason of willful misconduct or gross negligence of such Covered Person. Any such indemnification will only be recoverable from the Trust Estate. All rights to indemnification existing as permitted herein and payment of associated expenses shall not be affected by the dissolution or other cessation to exist of the date Managing Owner, or the withdrawal, adjudication of this Agreement for acts bankruptcy or omissions occurring on or prior to the Effective Time in favor insolvency of the current Managing Owner, or former managers, directors, officers the filing of a voluntary or other employees involuntary petition in bankruptcy under Title 11 of the Company and each Code by or against the Managing Owner. The source of its Subsidiaries currently indemnified by payments made in respect of indemnification under the Company or any of its Subsidiaries (collectively, Trust Agreement shall be the “Covered Persons”) as provided by statute or in their respective constitutional documents or the indemnity agreements listed on Schedule 4.17 will survive the transactions contemplated by the terms of this Agreement and will continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Time, and Parent will, and will cause the Surviving Entity to, honor the foregoing indemnification obligations assets of the Company and its Subsidiaries for acts or omissions by such Covered Persons occurring on or prior to the Effective TimeTrust. (b) At or prior to The Trust shall not incur the Effective Timecost of that portion of any insurance which insures any party against any liability, the Company will purchase a prepaid directors’ and officers’ liability insurance “run-off policy” with a claims period indemnification of six years from the Closing Date, and on terms and conditions no less favorable to the Covered Persons than those in effect under the Company’s existing directors’ and officers’ liability insurance policy in effect on the date hereof, for the benefit of the Covered Persons with respect to their acts and omissions as managers, directors, officers and employees of the Company or its Subsidiaries occurring prior to the Effective Timewhich is herein prohibited. (c) The provisions Expenses incurred in defending a threatened or pending civil, administrative or criminal action suit or proceeding against the Managing Owner shall be paid by the Trust in advance of this Section 4.17 are the final disposition of such action, suit or proceeding, if (i) intended the legal action relates to be for the benefit of, and will be specifically enforceable by, each Covered Person, and each such Person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons will be third party beneficiaries performance of this Section 4.17, duties or services by the Managing Owner on behalf of the Trust; and (ii) the Managing Owner undertakes to repay the advanced funds with interest to the Trust in addition to, and cases in which it is not in substitution for, any other rights entitled to indemnification or contribution that any such Person may have by contract or otherwise. (d) The obligations of Parent and the Surviving Entity pursuant to under this Section 4.17 (A) will be subject to the limitations imposed by applicable law, (B) do not release any Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder who is also an officer, manager or director of the Company or any of its Subsidiaries from his, her or its indemnification obligations as an Indemnifying Securityholder under Article 7 hereof (and no Indemnifying Securityholder or any affiliate of such Indemnifying Securityholder will have any right of contribution, indemnification or right of advancement from the Surviving Entity or Parent with respect to any indemnification payments that such Indemnifying Securityholder is required to pay to an Indemnified Person pursuant to Article 7 hereof); and (C) do not require the Surviving Entity or Parent to advance expenses to an individual in respect of any good faith claim by an Indemnified Person regarding fraud by such individual relating to this Agreement or any Related Agreement4.7.