CONTINUE AS
TO INDEMNITEE FOR ANY ACTION INDEMNITEE TOOK OR DID NOT TAKE WHILE SERVING IN AN
INDEMNIFIED CAPACITY EVEN THOUGH INDEMNITEE MAY HAVE CEASED TO SERVE IN SUCH
CAPACITY.
4.
NO DUPLICATION OF PAYMENTS.
THE COMPANY
SHALL NOT BE LIABLE UNDER THIS AGREEMENT TO MAKE ANY PAYMENT IN CONNECTION WITH
ANY CLAIM MADE AGAINST INDEMNITEE TO THE EXTENT INDEMNITEE HAS OTHERWISE
ACTUALLY RECEIVED PAYMENT (UNDER ANY INSURANCE POLICY, CERTIFICATE OF
INCORPORATION, BYLAW OR OTHERWISE) OF THE AMOUNTS OTHERWISE INDEMNIFIABLE
HEREUNDER.
THE COMPANY ACKNOWLEDGES AND AGREES THAT WHILE UNDER CERTAIN
CIRCUMSTANCES INDEMNITEE MAY BE ENTITLED TO INDEMNIFICATION AND EXPENSE
ADVANCEMENT AND/OR REIMBURSEMENT FROM THE FUND AND/OR ITS GENERAL PARTNER OR
OTHER AFFILIATES THEREOF (COLLECTIVELY, "FUND RELATED PARTIES") IN CONNECTION
WITH CLAIMS MADE AGAINST INDEMNITEE, THE OBLIGATIONS OF THE COMPANY HEREUNDER
WITH RESPECT TO ANY CLAIM ARE PRIMARY TO ANY OBLIGATIONS OF ANY FUND RELATED
PARTY WITH RESPECT THERETO AND INDEMNITEE WILL NOT BE OBLIGATED TO, AND HAS NO
RIGHT TO, SEEK INDEMNIFICATION FROM OR EXPENSE ADVANCEMENTS OR REIMBURSEMENT BY
ANY FUND RELATED PARTY WITH RESPECT TO ANY CLAIM UNLESS AND UNTIL THE COMPANY
SHALL HAVE FULFILLED ITS OBLIGATIONS HEREUNDER, INCLUDING WITH RESPECT TO ANY
INSURANCE PROVIDED PURSUANT HERETO OR OTHERWISE.
IN ADDITION, THE COMPANY, ON
BEHALF OF ITSELF AND ANY INSURER'S PROVIDING LIABILITY INSURANCE AS PROVIDED IN
SECTION 7 HEREOF, HEREBY WAIVES ANY RIGHTS OF CONTRIBUTION FROM OR AGAINST EACH
AND EVERY FUND RELATED PARTY WITH RESPECT TO ANY CLAIM.
EACH OF THE FUND
RELATED PARTIES IS AN INTENDED THIRD PARTY BENEFICIARY OF THIS AGREEMENT AND THE
COMPANY AGREES TO TAKE SUCH FURTHER ACTION AS MAY BE REQUESTED BY ANY FUND
RELATED PARTY TO EFFECTUATE THE CONTRACTUAL ARRANGEMENT BETWEEN THE COMPANY AND
THE FUND RELATED PARTIES AS SET FORTH HEREIN.
5.
PARTIAL INDEMNIFICATION.
IF INDEMNITEE
IS ENTITLED UNDER ANY PROVISION OF THIS AGREEMENT TO INDEMNIFICATION BY THE
COMPANY FOR SOME OR A PORTION OF EXPENSES INCURRED IN CONNECTION WITH ANY CLAIM,
BUT NOT, HOWEVER, FOR ALL OF THE TOTAL AMOUNT THEREOF, THE COMPANY SHALL
NEVERTHELESS INDEMNIFY INDEMNITEE FOR THE PORTION OF SUCH EXPENSES TO WHICH
INDEMNITEE IS ENTITLED.
6.
MUTUAL ACKNOWLEDGEMENT.
BOTH THE
COMPANY AND INDEMNITEE ACKNOWLEDGE THAT IN CERTAIN INSTANCES, FEDERAL LAW OR
APPLICABLE PUBLIC POLICY MAY PROHIBIT THE COMPANY FROM INDEMNIFYING ITS
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR FIDUCIARIES UNDER THIS AGREEMENT OR
OTHERWISE.
INDEMNITEE UNDERSTANDS AND ACKNOWLEDGES THAT THE COMPANY HAS
UNDERTAKEN OR MAY BE REQUIRED IN THE FUTURE TO UNDERTAKE WITH THE SECURITIES AND
EXCHANGE COMMISSION TO SUBMIT THE QUESTION OF INDEMNIFICATION TO A COURT IN
CERTAIN CIRCUMSTANCES FOR A DETERMINATION OF THE COMPANY'S RIGHT UNDER PUBLIC
POLICY TO INDEMNIFY INDEMNITEE.
7.
LIABILITY INSURANCE.
TO THE EXTENT THE
COMPANY MAINTAINS LIABILITY INSURANCE APPLICABLE TO DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR FIDUCIARIES, INDEMNITEE SHALL BE COVERED BY SUCH POLICIES
IN SUCH A MANNER AS TO PROVIDE INDEMNITEE THE SAME RIGHTS AND BENEFITS AS ARE
ACCORDED TO THE MOST FAVORABLY INSURED OF THE COMPANY'S DIRECTORS, IF INDEMNITEE
IS A DIRECTOR; OR OF THE COMPANY'S OFFICERS, IF INDEMNITEE IS NOT A