Common use of Indemnification Priority Clause in Contracts

Indemnification Priority. (A) The Company hereby acknowledges that the rights to indemnification and advancement of expenses provided pursuant to (x) provided pursuant to this Section 11.02, (y) the organizational documents of PubCo, the Company or any of their respective Subsidiaries or (z) any other agreement between the Indemnified Person, on the one hand, and PubCo, the Company or any of their respective Subsidiaries, on the other (collectively, the sources of indemnification and advancement of expenses described in clauses (x), (y) and (z), together with any insurance maintained by PubCo, the Company or their respective Subsidiaries for the benefit of Indemnified Persons, the “Indemnification Sources”) may also be provided to certain Indemnified Persons by one or more of their respective Affiliates (other than PubCo, the Company and their respective Subsidiaries) or their insurers (collectively, and including, in the case of the GGC Member and the BSMH Member, the GGC Member, the BSMH Member, GGC and BSMH and, to the extent applicable, each of their respective partners, shareholders, members, Affiliates, associated investment funds, general partners, directors, officers, fiduciaries, managers, controlling Persons, employees and agents and, to the extent applicable, each of the partners, shareholders, members, Affiliates, associated investment funds, directors, officers, fiduciaries, managers, controlling Persons, employees, insurers and agents of each of the foregoing, the “Affiliate Indemnitors” ). The Company hereby agrees that (1) as between the Indemnification Sources, on the one hand, and the Affiliate Indemnitors, on the other hand, the Indemnification Sources shall be fully and primarily responsible for any Claim indemnifiable by the Indemnification Sources, regardless of the availability of recovery from any Affiliate Indemnitor, and the obligations of any Affiliate Indemnitor with respect to any such Claim shall be secondary, and (2) the Company irrevocably waives, relinquishes and releases and shall cause the other Indemnification Sources to irrevocably waive, relinquish and release the Affiliate Indemnitors from any and all claims against the Affiliate Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Affiliate Indemnitors on behalf of any such Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the Indemnification Sources shall affect the foregoing and the Affiliate Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Indemnification Sources. The Company agrees to indemnify the Affiliate Indemnitors directly for any amounts that the Affiliate Indemnitors pay as indemnification or advancement on behalf of any Indemnified Person for which such Indemnified Person is entitled to indemnification or advancement from the Indemnification Sources. The Company shall cooperate, and shall cause PubCo and the Company and each of their respective Subsidiaries to cooperate with the Affiliate Indemnitors in pursuing such rights. (B) Except as provided in Section 11.02(a)(iii)(A) above, in the event of any payment by the Company of indemnifiable expenses, judgments, damages, liabilities, fines and amounts paid in settlement actually incurred by such Indemnified Person in connection with such action, suit, proceeding, demand or investigation pursuant to Section 11.02(a), the Company shall be subrogated to the extent of such payment to all of the rights of contribution or recovery of the Indemnified Persons against other Persons (other than the Affiliate Indemnitors), and the Indemnified Person shall take, at the request of the Company, all reasonable action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. (C) The Company and its Subsidiaries shall purchase and at all times maintain in effect reasonable and customary directors’ and officers’ insurance coverage (as determined by the Managing Member in its discretion) for the benefit of each director, manager and officer of the Company and its Subsidiaries. (D) The rights to indemnification provided to Indemnified Persons under this Section 11.02 shall not be exclusive of any other rights that such Indemnified Person may have or hereafter acquire under applicable Law, this Agreement, any other agreement between an Indemnified Person, on the one hand, or PubCo, the Company or any of their respective Subsidiaries, on the other hand, and the Company shall have the power and authority to provide indemnification, advancement of expenses and other similar rights to the Indemnified Persons or to any other Person (including by agreements with members of the board of directors of PubCo) as may be approved by the Managing Member.