Common use of Limitations of Indemnification Clause in Contracts

Limitations of Indemnification. (a) Notwithstanding the foregoing, the indemnification obligations set forth in Sections 7.2 and 7.3: (i) cover only those costs and expenses paid or incurred by the applicable Indemnitee; (ii) do not cover lost profits, consequential damages, punitive damages or special damages incurred by an Indemnitee; (iii) do not cover any amounts paid or incurred by an Indemnitee to the extent attributable to such Indemnitee’s fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or material breach of this Agreement or the Holdco LLC Agreement, as determined by a final non-appealable order of a court of competent jurisdiction; and (iv) are subject to the right of the Company to seek a final and non-appealable order of a court of competent jurisdiction (an “Indemnity Determination Proceeding”) to determine whether all or any portion of the amount for which an Indemnitee is being (or was) indemnified was attributable to fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or a material breach of this Agreement or the Holdco LLC Agreement or was otherwise ineligible for reimbursement by the Company pursuant to this Article VII. (b) Notwithstanding anything to the contrary provided in this Agreement: (i) the decision on the part of the Company to undertake an Indemnity Determination Proceeding may be made by any non-indemnified Partner entitled to vote on Major Decisions, acting alone (without the requirement of an Approved Major Decision); (ii) any such non-indemnified Partner entitled to vote on Major Decisions, acting alone, is fully and completely authorized and empowered to take any and all actions it deems necessary or appropriate (in the name of and on behalf of the Company) in connection with the commencement, prosecution, enforcement and/or settlement of an Indemnity Determination Proceeding, including causing the Company to expend funds in connection with the foregoing (without the requirement of an Approved Major Decision); and (iii) the Company (acting through such non-indemnified Partner entitled to vote on Major Decisions) and the Indemnitee shall have the right to control their respective claim(s) and/or defense(s) and to appoint separate counsel, at the cost and expense of the Company, in connection with an Indemnity Determination Proceeding. (c) If the Company prevails in an Indemnity Determination Proceeding, then within ten (10) Business Days after receipt of any invoice for costs and expenses actually paid by the Company in connection with the performance of the Company’s indemnification obligations to the Indemnitee arising from the applicable Indemnity Claim and/or in connection with the Indemnity Determination Proceeding, the Partner who is the Indemnitee (or the Partner to whom the Indemnitee is a Partner Related Party) shall be deemed to have borrowed a Deficiency Loan from each of the other Partners (or its/their Deficiency Loan Designee(s)) in an amount equal to the product of (i) the amount of such costs and expenses actually paid by the Company in connection with the performance of the Company’s indemnification obligations to the Indemnitee arising from the applicable Indemnity Claim and/or in connection with the Indemnity Determination Proceeding and (ii) the Percentage Interest of such other Partner relative to the Percentage Interests of all such other Partners. (d) If the Company does not prevail in an Indemnity Determination Proceeding, then the Partner(s) that commenced such Indemnity Determination Proceeding (i) shall be deemed, within ten (10) Business Days after receipt of any invoice for costs and expenses actually paid by the Company in connection with the Indemnity Determination Proceeding, to have borrowed a Deficiency Loan from each of the other Partners (or its/their Deficiency Loan Designee(s)) in amount equal to the product of (x) the amount of such costs and expenses actually paid by the Company in connection with the Indemnity Determination Proceeding and (y) the Percentage Interest of such other Partner relative to the Percentage Interests of all such other Partners and (ii) shall pay to the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) an amount equal to the sum of (x) all costs and expenses actually paid by the Indemnitee (or if applicable, the Partner to whom the Indemnitee is a Partner Related Party) in connection with the Indemnity Determination Proceeding and (y) interest on all amounts actually paid by the Indemnitee under sub-clause (ii)(x) calculated at the Deficiency Loan Rate from the date such amounts were actually paid by the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) until the date of repayment in full of such amounts by the Partner(s) that commenced such Indemnity Determination Proceeding, and if the Partner(s) that commenced the Indemnity Determination Proceeding shall fail to pay such amounts to the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) within ten (10) Business Days after receipt of any invoice for same, the Partner(s) owing such amounts shall be deemed to have borrowed a Deficiency Loan from the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party or its Deficiency Loan Designee) in an amount equal to the amounts specified in sub-clauses (ii)(x) and (ii)(y) above.

Limitations of Indemnification. (a) 9.1 Notwithstanding the foregoingany other terms of this Deed, no provision of this Deed shall indemnify, the indemnification obligations set forth Indemnitee against, or exempt the Indemnitee from, any liability for fraud or dishonesty proved against the Indemnitee. 9.2 Notwithstanding any other terms of this Deed, no provision of this Deed shall indemnify the Indemnitee against, or exempt the Indemnitee from, any liability to the extent such provision would be void under applicable law, including, without limitation, the provisions of section 235 of the Companies Act (but shall otherwise have effect to the Fullest Extent Permitted By Law in Sections 7.2 and 7.3effect at the relevant time). The Parties acknowledge that, at the date of this Deed, section 235 of the Companies Act renders void any provision, whether contained in the Constitution, in a contract with the Company (such as this Deed) or otherwise, purporting to exempt a director or other officer of the Company from, or purporting to indemnify a director or other officer of the Company against, any liability which by virtue of any enactment or rule of law would otherwise attach to the Indemnitee in respect of any negligence, default, breach of duty or breach of trust of which the Indemnitee may be guilty in relation to the Company; provided that, notwithstanding the aforesaid prohibition, the Company may indemnify a director or other officer against any liability incurred by the Indemnitee: (i) cover only those costs and expenses paid in defending proceedings, whether civil or incurred by criminal, in which judgment is given in the applicable Indemnitee’s favour or in which the Indemnitee is acquitted; or (ii) do not cover lost profits, consequential damages, punitive damages or special damages incurred by an Indemnitee; (iii) do not cover any amounts paid or incurred by an Indemnitee to the extent attributable to such Indemnitee’s fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or material breach of this Agreement or the Holdco LLC Agreement, as determined by a final non-appealable order of a court of competent jurisdiction; and (iv) are subject to the right of the Company to seek a final and non-appealable order of a court of competent jurisdiction (an “Indemnity Determination Proceeding”) to determine whether all or any portion of the amount for which an Indemnitee is being (or was) indemnified was attributable to fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or a material breach of this Agreement or the Holdco LLC Agreement or was otherwise ineligible for reimbursement by the Company pursuant to this Article VII. (b) Notwithstanding anything to the contrary provided in this Agreement: (i) the decision on the part of the Company to undertake an Indemnity Determination Proceeding may be made by any non-indemnified Partner entitled to vote on Major Decisions, acting alone (without the requirement of an Approved Major Decision); (ii) any such non-indemnified Partner entitled to vote on Major Decisions, acting alone, is fully and completely authorized and empowered to take any and all actions it deems necessary or appropriate (in the name of and on behalf of the Company) in connection with the commencement, prosecution, enforcement and/or settlement of any proceedings or an Indemnity Determination Proceeding, including causing the Company to expend funds in connection with the foregoing (without the requirement of an Approved Major Decision); and (iii) the Company (acting through such non-indemnified Partner entitled to vote on Major Decisions) and the Indemnitee shall have the right to control their respective claim(s) and/or defense(s) and to appoint separate counsel, at the cost and expense application for relief from liability under section 233 or 234 of the Company, Companies Act in connection with an Indemnity Determination Proceeding. (c) If the Company prevails in an Indemnity Determination Proceeding, then within ten (10) Business Days after receipt of any invoice for costs and expenses actually paid by the Company in connection with the performance of the Company’s indemnification obligations which relief is granted to the Indemnitee arising from the applicable Indemnity Claim and/or in connection with the Indemnity Determination Proceeding, the Partner who is the Indemnitee (or the Partner to whom the Indemnitee is a Partner Related Party) shall be deemed to have borrowed a Deficiency Loan from each of the other Partners (or its/their Deficiency Loan Designee(s)) in an amount equal to the product of (i) the amount of such costs and expenses actually paid by the Company in connection with the performance High Court of the Company’s indemnification obligations to the Indemnitee arising from the applicable Indemnity Claim and/or in connection with the Indemnity Determination Proceeding and (ii) the Percentage Interest of such other Partner relative to the Percentage Interests of all such other PartnersIreland. (d) If the Company does not prevail in an Indemnity Determination Proceeding, then the Partner(s) that commenced such Indemnity Determination Proceeding (i) shall be deemed, within ten (10) Business Days after receipt of any invoice for costs and expenses actually paid by the Company in connection with the Indemnity Determination Proceeding, to have borrowed a Deficiency Loan from each of the other Partners (or its/their Deficiency Loan Designee(s)) in amount equal to the product of (x) the amount of such costs and expenses actually paid by the Company in connection with the Indemnity Determination Proceeding and (y) the Percentage Interest of such other Partner relative to the Percentage Interests of all such other Partners and (ii) shall pay to the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) an amount equal to the sum of (x) all costs and expenses actually paid by the Indemnitee (or if applicable, the Partner to whom the Indemnitee is a Partner Related Party) in connection with the Indemnity Determination Proceeding and (y) interest on all amounts actually paid by the Indemnitee under sub-clause (ii)(x) calculated at the Deficiency Loan Rate from the date such amounts were actually paid by the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) until the date of repayment in full of such amounts by the Partner(s) that commenced such Indemnity Determination Proceeding, and if the Partner(s) that commenced the Indemnity Determination Proceeding shall fail to pay such amounts to the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) within ten (10) Business Days after receipt of any invoice for same, the Partner(s) owing such amounts shall be deemed to have borrowed a Deficiency Loan from the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party or its Deficiency Loan Designee) in an amount equal to the amounts specified in sub-clauses (ii)(x) and (ii)(y) above.

Limitations of Indemnification. (a) 10.1 Notwithstanding the foregoingany other terms of this Deed, no provision of this Deed shall indemnify, the indemnification obligations set forth in Sections 7.2 and 7.3: (i) cover only those costs and expenses paid Indemnitee against, or incurred by exempt the applicable Indemnitee from, any liability for fraud or dishonesty proved against the Indemnitee; (ii) do not cover lost profits. 10.2 Notwithstanding any other terms of this Deed, consequential damagesno provision of this Deed shall indemnify the Indemnitee against, punitive damages or special damages incurred by an Indemnitee; (iii) do not cover exempt the Indemnitee from, any amounts paid or incurred by an Indemnitee liability to the extent attributable to such Indemnitee’s fraudprovision would be void under applicable law, willful misconductincluding, gross negligencewithout limitation, misappropriation the provisions of funds, breach section 235 of the implied contractual covenant of good faith and fair dealing or material breach of this Agreement or the Holdco LLC Agreement, as determined by a final non-appealable order of a court of competent jurisdiction; and Companies Xxx 0000 (iv) are subject but shall otherwise have effect to the right of Fullest Extent Permitted By Law in effect at the Company to seek a final and non-appealable order of a court of competent jurisdiction (an “Indemnity Determination Proceeding”) to determine whether all or any portion of the amount for which an Indemnitee is being (or was) indemnified was attributable to fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or a material breach of this Agreement or the Holdco LLC Agreement or was otherwise ineligible for reimbursement by the Company pursuant to this Article VII. (b) Notwithstanding anything to the contrary provided in this Agreement: (i) the decision on the part of the Company to undertake an Indemnity Determination Proceeding may be made by any non-indemnified Partner entitled to vote on Major Decisions, acting alone (without the requirement of an Approved Major Decisionrelevant time); (ii) any such non-indemnified Partner entitled to vote on Major Decisions, acting alone, is fully and completely authorized and empowered to take any and all actions it deems necessary or appropriate (in the name of and on behalf of the Company) in connection with the commencement, prosecution, enforcement and/or settlement of an Indemnity Determination Proceeding, including causing the Company to expend funds in connection with the foregoing (without the requirement of an Approved Major Decision); and (iii) the Company (acting through such non-indemnified Partner entitled to vote on Major Decisions) and the Indemnitee shall have the right to control their respective claim(s) and/or defense(s) and to appoint separate counsel. The Parties acknowledge that, at the cost and expense date of this Deed, section 235 of the Companies Act renders void any provision, whether contained in the constitution of the Company, in connection a contract with an Indemnity Determination Proceeding. (c) If the Company prevails in an Indemnity Determination Proceeding(such as this Deed) or otherwise, then within ten (10) Business Days after receipt purporting to exempt a director or other officer of the Company from, or purporting to indemnify a director or other officer of the Company against, any liability which by virtue of any invoice for costs and expenses actually paid by the Company in connection with the performance enactment or rule of the Company’s indemnification obligations law would otherwise attach to the Indemnitee arising from in respect of any negligence, default, breach of duty or breach of trust of which the applicable Indemnity Claim and/or Indemnitee may be guilty in connection with relation to the Indemnity Determination ProceedingCompany, provided that, notwithstanding the aforesaid prohibition, the Partner who Company may indemnify a director or other officer against any liability incurred by the Indemnitee: (i) in defending proceedings, whether civil or criminal, in which judgment is given in the Indemnitee (Indemnitee’s favour or the Partner to whom in which the Indemnitee is a Partner Related Party) shall be deemed to have borrowed a Deficiency Loan from each of the other Partners (acquitted; or its/their Deficiency Loan Designee(s)) in an amount equal to the product of (i) the amount of such costs and expenses actually paid by the Company in connection with the performance of the Company’s indemnification obligations to the Indemnitee arising from the applicable Indemnity Claim and/or in connection with the Indemnity Determination Proceeding and (ii) the Percentage Interest of such other Partner relative to the Percentage Interests of all such other Partners. (d) If the Company does not prevail in an Indemnity Determination Proceeding, then the Partner(s) that commenced such Indemnity Determination Proceeding (i) shall be deemed, within ten (10) Business Days after receipt of any invoice for costs and expenses actually paid by the Company in connection with the Indemnity Determination Proceeding, to have borrowed a Deficiency Loan from each of the other Partners (or its/their Deficiency Loan Designee(s)) in amount equal to the product of (x) the amount of such costs and expenses actually paid by the Company in connection with the Indemnity Determination Proceeding and (y) the Percentage Interest of such other Partner relative to the Percentage Interests of all such other Partners and (ii) shall pay to the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party) an amount equal to the sum of (x) all costs and expenses actually paid by the Indemnitee (or if applicable, the Partner to whom the Indemnitee is a Partner Related Party) in connection with any proceedings or an application for relief from liability under section 233 or 234 of the Indemnity Determination Proceeding and (y) interest on all amounts actually paid by the Indemnitee under sub-clause (ii)(x) calculated at the Deficiency Loan Rate from the date such amounts were actually paid by the Indemnitee (or, if applicable, the Partner to whom the Indemnitee Companies Act in which relief is a Partner Related Party) until the date of repayment in full of such amounts by the Partner(s) that commenced such Indemnity Determination Proceeding, and if the Partner(s) that commenced the Indemnity Determination Proceeding shall fail to pay such amounts granted to the Indemnitee (or, if applicable, by the Partner to whom the Indemnitee is a Partner Related Party) within ten (10) Business Days after receipt High Court of any invoice for same, the Partner(s) owing such amounts shall be deemed to have borrowed a Deficiency Loan from the Indemnitee (or, if applicable, the Partner to whom the Indemnitee is a Partner Related Party or its Deficiency Loan Designee) in an amount equal to the amounts specified in sub-clauses (ii)(x) and (ii)(y) aboveIreland.