Common use of Priority of Indemnification Clause in Contracts

Priority of Indemnification. With respect to any Indemnified Person who has rights to indemnification, advancement of expenses or insurance provided by any stockholder of the Corporation, the Corporation and its respective direct and indirect Subsidiaries (collectively, the “Company Group”), then the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other member of the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company Group), together with their respective heirs, successors and assigns, the “Other Indemnitors”) may have concurrent liability to an Indemnified Person with respect to the Indemnity Obligations, the Corporation hereby agrees that in no event shall the Corporation or any other member of the Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby agrees that no advancement or payment by the Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from the Corporation or any other member of the Company Group shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Corporation or any other member of the Company Group.

Priority of Indemnification. With respect (a) Each member of the Company Group hereby acknowledge that the D&O Indemnified Parties nominated pursuant to any Indemnified Person who has this ARTICLE II may have certain rights to indemnification, advancement of expenses or insurance provided by any stockholder the Shareholders that nominated such directors, managers or Board Observers pursuant to Nomination Rights or otherwise and certain of the Corporationtheir Affiliates or Related Funds or their Affiliates’ and Related Funds’ respective partners (whether general, the Corporation limited or otherwise), shareholders, members, directors, officers, fiduciaries, managers, members, controlling Persons, employees and its respective direct and indirect Subsidiaries agents (collectively, the “Company GroupInstitutional Indemnitors”), then the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other . Each member of the Company GroupGroup hereby agrees (i) that they are the indemnitors of first resort (i.e., in their obligations to such capacity, whether the Indemnity Obligations D&O Indemnified Parties are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that primary and any stockholder obligation of the Corporation Institutional Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such D&O Indemnified Parties are secondary), (ii) that they shall be required to advance the full amount of expenses incurred by such D&O Indemnified Parties and its Affiliates other than shall be liable for the Company Group (such Persons (excluding full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of the Organizational Documents of any member of the Company Group), together with their respective heirs, successors and assigns, the “Other Indemnitors”) may have concurrent liability to an Indemnified Person with respect to the Indemnity Obligations, the Corporation hereby agrees that in no event shall the Corporation Group (or any other agreement between a member of the Company Group and such D&O Indemnified Parties), without regard to any rights such D&O Indemnified Parties may have against the Institutional Indemnitors, and (iii) that they irrevocably waive, relinquish and release the Institutional Indemnitors from any right or claim and all claims against any of the Other Institutional Indemnitors for contribution or have rights of contribution, subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other recovery of any kind in respect thereof. Each member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby further agrees that no advancement or payment by the Other Institutional Indemnitors on behalf of an such D&O Indemnified Person Parties with respect to any claim for which an such D&O Indemnified Person has Parties have sought indemnification from the Corporation or any other a member of the Company Group shall affect the foregoing and the Other Institutional Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such D&O Indemnified Person Parties against the Corporation or any other a member of the Company Group. (b) No Institutional Indemnitor shall have any liability as a result of nominating a D&O Indemnified Party, or for any act or omission by such nominated D&O Indemnified Party in his or her capacity as a director, manager, officer or Board Observer, as applicable. Each of the Institutional Indemnitors is an express third- party beneficiary of the rights conferred thereto in this Section 2.8.

Priority of Indemnification. With respect to any Indemnified Person who has The Corporation hereby acknowledges that the Indemnitee may have certain rights to indemnification, advancement of expenses or Expenses and/or insurance provided to the Indemnitee by any stockholder of the Corporation, the Corporation and its respective direct and indirect Subsidiaries other parties (collectively, the “Company Group”), then the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other member of the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company Group), together with their respective heirs, successors and assigns, the “Other Indemnitors”) may have concurrent liability ). Subject to an Indemnified Person with respect to the Indemnity ObligationsSection 9(c), the Corporation hereby agrees (i) that in no event shall it is the Corporation or indemnitor of first resort (i.e., its obligations to the Indemnitee are primary and any other member of the Company Group have any right or claim against any obligation of the Other Indemnitors to advance Expenses or to provide indemnification for contribution the same Expenses or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made Liabilities incurred by the Corporation Indemnitee are secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by the Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the Corporation’s organizational documents (or any other member of agreement between the Company Group with respect Corporation and the Indemnitee), without regard to any Indemnity Obligationrights the Indemnitee may have against the Other Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. In additionSubject to Section 9(c), the Corporation hereby further agrees that no advancement or payment by the Other Indemnitors on behalf of an Indemnified Person the Indemnitee with respect to any claim for which an Indemnified Person the Indemnitee has sought indemnification from the Corporation or any other member of the Company Group shall affect the foregoing foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person the Indemnitee against the Corporation. The Corporation or any other member and the Indemnitee agree that the Other Indemnitors are express third party beneficiaries of the Company Groupterms of this Section 24.

Priority of Indemnification. With (a) The obligation of the Company under Section 10.2 to indemnify or advance expenses to a Covered Person for the matters covered hereby shall be the primary source of indemnification and advancement of such Covered Person in connection therewith and any obligation on the part of a Member or any of its Affiliates (excluding, for the avoidance of doubt, the Company and its Subsidiaries) (an “Upstream Indemnifying Party”) with respect thereto (such obligation, an “Indemnification Agreement”) shall be secondary to the Company’s obligation and shall be reduced by the amount that the Covered Person may collect as indemnification or advancement from the Company. If the Company fails to indemnify or advance expenses to a Covered Person as required or contemplated by this Agreement (such amounts the “Unpaid Indemnity Amounts”) and an Upstream Indemnifying Party makes any Indemnified payment to such Covered Person who has rights to indemnification, in respect of indemnification or advancement of expenses or insurance provided by under any stockholder Indemnification Agreement on account of the Corporationsuch Unpaid Indemnity Amounts, the Corporation and its respective direct and indirect Subsidiaries (collectively, the “Company Group”), then the Company Group such Upstream Indemnifying Party shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other member of the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company Group), together with their respective heirs, successors and assigns, the “Other Indemnitors”) may have concurrent liability to an Indemnified Person with respect to the Indemnity Obligations, the Corporation hereby agrees that in no event shall the Corporation or any other member of the Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby agrees that no advancement or payment by the Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from the Corporation or any other member of the Company Group shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent rights of such advancement or payment to all of the rights of recovery of such Indemnified Covered Person against the Corporation under Section 10.2 or any other member similar arrangement or agreement for indemnification or advancement of expenses by the Company Group(a “Company Indemnification Agreement”). (b) To the fullest extent permitted by applicable law, the Company’s obligation to indemnify a Covered Person under Section 10.2 or any Company Indemnification Agreement shall include any amounts expended by an Upstream Indemnifying Party under any Indemnification Agreement in respect of indemnification or advancement of expenses to any Covered Person in connection with any threatened, pending or completed Claim related to the Company.

Priority of Indemnification. With respect to any Indemnified Person who has rights to indemnification, advancement of expenses or insurance provided by any stockholder of PubCo or the Corporation, other than each of PubCo, the Corporation and its respective direct and indirect Subsidiaries (collectively, the “Company Group”), then the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other member of the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of PubCo or the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company Group), together with their respective heirs, successors and assigns, the “Other Indemnitors”) may have concurrent liability to an Indemnified Person with respect to the Indemnity Obligations, the Corporation hereby agrees that in no event shall the Corporation or any other member of the Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby agrees that no advancement or payment by the Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from the Corporation or any other member of the Company Group shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Corporation or any other member of the Company Group.

Priority of Indemnification. With respect to any Dynegy hereby acknowledges that each Holder Indemnified Person who has and Designated Director, and their respective heirs or representatives (each, an “ECP Indemnitee”), may have certain rights to indemnification, advancement of expenses or and/or insurance provided by any stockholder or on behalf of the Corporation, the Corporation and its respective direct and indirect Subsidiaries Controlled Affiliates (collectively, the “Company GroupFund Indemnitors”) and that, notwithstanding anything to the contrary in this Agreement (including as set forth in Section 5 and Section 9(c)): (i) Dynegy is the indemnitor of first resort and the Fund Indemnitors are the indemnitors of last resort in connection with any claims for indemnification from the ECP Indemnitees, (ii) Dynegy will be required to advance the full amount of expenses incurred by each ECP Indemnitee and will be liable for the full amount of all losses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by Section 5 or Section 9(c), then as applicable, without regard to any rights each ECP Indemnitee may have against the Company Group shall be primarily liable Fund Indemnitors, and (iii) the Parties irrevocably waive, relinquish and release the Fund Indemnitors from any and all claims against the Fund Indemnitors for all indemnificationcontribution, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation subrogation or any other member recovery of the Company Group, any kind in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwiserespect thereof. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company Group), together with their respective heirs, successors and assigns, the “Other Indemnitors”) may have concurrent liability to an Indemnified Person with respect anything to the Indemnity Obligationscontrary in this Agreement, the Corporation hereby agrees that in no event shall the Corporation or any other member of the Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby agrees that no advancement or payment by the Other Fund Indemnitors on behalf of an Indemnified Person ECP Indemnitee with respect to any claim for which an Indemnified Person such ECP Indemnitee has sought indemnification or advancement of expenses from the Corporation or any other member of the Company Group shall Dynegy will affect the foregoing and the Other Fund Indemnitors shall will have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person ECP Indemnitee against the Corporation or any other member Dynegy. The Fund Indemnitors are express third-party beneficiaries of the Company Groupterms of this Section 14(l).

Priority of Indemnification. With respect (a) Notwithstanding anything to any Indemnified Person who has rights the contrary in this Section 6.6, to indemnificationthe maximum extent permitted by applicable law, to the extent that an Indemnitee is also entitled to be indemnified by, or receive advancement of expenses from, any potential, current or insurance provided by any stockholder of the Corporation, the Corporation and its respective direct and indirect Subsidiaries former Portfolio Company (collectively, the a “Portfolio Company Group”), then the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity ObligationsIndemnitor”) afforded to such Indemnified Person acting in such capacity at which any Indemnitee is, was or capacities on behalf will be serving as a director, officer, employee, partner, manager, member, trustee, agent, independent contractor or advisor (a “Portfolio Company Indemnitee”) at the request of the Board of DirectorsFund, the Corporation General Partner, the AIFM, the Management Company or any other member of their respective Affiliates, with regards to any such Liabilities, it is intended that (i) such Portfolio Company Indemnitor shall be the indemnitor of first resort (i.e., its obligations to such Indemnitee are primary and any obligation of the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational Fund (or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates Affiliate thereof other than such Portfolio Company Indemnitor) to provide indemnification or advancement for the Company Group same Liabilities (including all interest, assessments and other charges paid or payable in connection with or in respect of such Persons (excluding any member of the Company GroupLiabilities) incurred by such Indemnitee are secondary), together with their respective heirs(ii) the Fund’s obligation, successors and assignsif any, the “Other Indemnitors”) may have concurrent liability to an Indemnified Person with respect to the Indemnity Obligations, the Corporation hereby agrees that in no event shall the Corporation indemnify or any other member of the Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect advance expenses to any Indemnity Obligation. In addition, Indemnitee who is or was serving at the Corporation hereby agrees Fund’s request as a Portfolio Company Indemnitee shall be reduced by any amount that no such Indemnitee collects as indemnification or advancement or payment by the Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from the Corporation or any other member of the applicable Portfolio Company Group shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Corporation or any other member of the Company Group.Indemnitor and

Priority of Indemnification. With respect to any Indemnified Person who In the event that the Indemnitee has rights to indemnification, advancement of expenses or /insurance provided by any stockholder of the Corporation, the Corporation and its respective direct and indirect Subsidiaries a third party (collectively, the “Company GroupThird-Party Indemnitors”), then the Company Group hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Third-Party Indemnitors to advance Expenses or to provide indemnification for the same Expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be primarily required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all indemnificationExpenses, reimbursementsjudgments, advancements penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Certificate of Incorporation or similar payments Bylaws (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other member of agreement between the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company GroupIndemnitee), together with their respective heirs, successors and assigns, the “Other Indemnitors”) without regard to any rights Indemnitee may have concurrent liability to an Indemnified Person with respect to against the Indemnity ObligationsThird-Party Indemnitors and (iii) that it irrevocably waives, relinquishes and releases the Corporation hereby agrees that in no event shall Third-Party Indemnitors from any and all claims against the Corporation Third-Party Indemnitors for contribution, subrogation or any other member recovery of the any kind in respect thereof. The Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby further agrees that no advancement or payment by the Other Third-Party Indemnitors on behalf of an Indemnified Person Indemnitee with respect to any claim Claim for which an Indemnified Person Indemnitee has sought indemnification from the Corporation or any other member of the Company Group shall affect the foregoing and the Other Third-Party Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person Indemnitee against the Corporation or any other member Company. The Company and Indemnitee agree that the Third-Party Indemnitors are express third party beneficiaries of the Company Groupterms of this Section 7.

Priority of Indemnification. With respect to any Indemnified Person who The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses or and/or insurance provided by any stockholder [•] and certain of the Corporation, the Corporation and its respective direct and indirect Subsidiaries affiliates (collectively, the “Company GroupFund Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., then its obligations to Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Certificate of Incorporation or Bylaws of the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Corporation or any other member of agreement between the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract or otherwise. Notwithstanding the fact that any stockholder of the Corporation and its Affiliates other than the Company Group (such Persons (excluding any member of the Company GroupIndemnitee), together with their respective heirs, successors and assigns, the “Other Indemnitors”) without regard to any rights Indemnitee may have concurrent liability to an Indemnified Person with respect to against the Indemnity ObligationsFund Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Corporation hereby agrees that in no event shall Fund Indemnitors from any and all claims against the Corporation Fund Indemnitors for contribution, subrogation or any other member recovery of the any kind in respect thereof. The Company Group have any right or claim against any of the Other Indemnitors for contribution or have rights of subrogation against any Other Indemnitors through an Indemnified Person for any payment made by the Corporation or any other member of the Company Group with respect to any Indemnity Obligation. In addition, the Corporation hereby further agrees that no advancement or payment by the Other Fund Indemnitors on behalf of an Indemnified Person Indemnitee with respect to any claim for which an Indemnified Person Indemnitee has sought indemnification from the Corporation or any other member of the Company Group shall affect the foregoing and the Other Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person Indemnitee against the Corporation or any other member Company. The Company and Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the Company Groupterms of this Section 4(c).