OF, OR SERVICES PROVIDED BY SPONSOR TO, ANY OF THE COMPANIES OR
ANY AFFILIATE OF ANY OF THE COMPANIES FROM TIME TO TIME (INCLUDING BUT NOT
LIMITED TO ANY INDEMNIFICATION OBLIGATIONS ASSUMED OR INCURRED BY ANY INDEMNITEE
TO OR ON BEHALF OF ANY OF THE COMPANIES OR ANY OF THEIR ACCOUNTANTS OR OTHER
REPRESENTATIVES, AGENTS OR AFFILIATES) EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF SUCH INDEMNITEE'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, AND IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE
UNAVAILABLE OR UNENFORCEABLE FOR ANY REASON, EACH OF THE COMPANIES HEREBY AGREES
TO MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE
INDEMNIFIED LIABILITIES THAT IS PERMISSIBLE UNDER APPLICABLE LAW. FOR PURPOSES
OF THIS SECTION 4(B), NONE OF THE CIRCUMSTANCES DESCRIBED IN THE LIMITATIONS
CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL BE DEEMED TO APPLY ABSENT
A FINAL NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION TO SUCH
EFFECT, IN WHICH CASE TO THE EXTENT ANY SUCH LIMITATION IS SO DETERMINED TO
APPLY TO ANY INDEMNITEE AS TO ANY PREVIOUSLY ADVANCED INDEMNITY PAYMENTS MADE BY
THE COMPANIES, THEN SUCH PAYMENTS SHALL BE PROMPTLY REPAID BY SUCH INDEMNITEE TO
THE COMPANIES. THE RIGHTS OF ANY INDEMNITEE TO INDEMNIFICATION HEREUNDER WILL BE
IN ADDITION TO ANY OTHER RIGHTS ANY SUCH PERSON MAY HAVE UNDER ANY OTHER
AGREEMENT OR INSTRUMENT REFERENCED ABOVE OR ANY OTHER AGREEMENT OR INSTRUMENT TO
WHICH SUCH INDEMNITEE IS OR BECOMES A PARTY OR IS OR OTHERWISE BECOMES A
BENEFICIARY OR UNDER LAW OR REGULATION. NONE OF THE INDEMNITEES WILL BE LIABLE
TO THE COMPANIES OR ANY OF THEIR AFFILIATES FOR ANY ACT OR OMISSION SUFFERED OR
TAKEN BY SUCH INDEMNITEE THAT DOES NOT CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
5.
DISCLAIMER AND LIMITATION OF LIABILITY; OPPORTUNITIES.
(a)
Disclaimer; Standard of Care. Sponsor makes no representations or
warranties, express or implied, in respect of the services to be provided by it
hereunder. In no event will Sponsor or any of the Indemnitees be liable to any
of the Companies or any of their affiliates for any act, alleged act, omission
or alleged omission that does not constitute gross negligence or willful
misconduct of Sponsor as determined by a final, non-appealable determination of
a court of competent jurisdiction.
(B)
FREEDOM TO PURSUE OPPORTUNITIES. IN RECOGNITION THAT SPONSOR AND
ITS AFFILIATES CURRENTLY HAVE, AND WILL IN THE FUTURE HAVE OR WILL CONSIDER
ACQUIRING, INVESTMENTS IN NUMEROUS COMPANIES WITH RESPECT TO WHICH SPONSOR OR
ITS AFFILIATES MAY SERVE AS AN ADVISOR, A DIRECTOR OR IN SOME OTHER CAPACITY,
AND IN RECOGNITION THAT SPONSOR AND ITS AFFILIATES HAVE MYRIAD DUTIES TO VARIOUS
INVESTORS AND PARTNERS, AND IN ANTICIPATION THAT THE COMPANIES AND SPONSOR (OR
ONE OR MORE AFFILIATES, ASSOCIATED INVESTMENT FUNDS OR PORTFOLIO COMPANIES, OR
CLIENTS OF SPONSOR) MAY ENGAGE IN THE SAME OR SIMILAR ACTIVITIES OR LINES OF
BUSINESS AND HAVE AN INTEREST IN THE SAME AREAS OF CORPORATE OPPORTUNITIES, AND
IN RECOGNITION OF THE BENEFITS TO BE DERIVED BY THE COMPANIES