Common use of Exculpation; Indemnification Clause in Contracts

Exculpation; Indemnification. Each Seller hereby agrees that: (i) the Sellers’ Representative shall not be liable to any Seller for any actions taken or omitted to be taken under or in connection with this Agreement, any of the other Transaction Documents, or the Transaction, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; (ii) the Sellers’ Representative shall not owe any fiduciary duty to any of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to this Agreement or any of the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; and (iii) the Sellers, jointly and severally, shall defend, indemnify and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether or not arising out of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertion, or settlement of any claim or the enforcement of any rights under this Agreement or any of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Law.

Exculpation; Indemnification. Each Seller hereby agrees that: (ia) the Sellers’ Representative Sub-Advisor, its members and their respective officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Sub-Advisor or its affiliates (the “Indemnified Parties”) shall not be liable to any Seller the Fund for any actions action taken or omitted to be taken under or by the Sub-Advisor in connection with this Agreement, the performance of any of the other Transaction Documents, its duties or the Transaction, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; (ii) the Sellers’ Representative shall not owe any fiduciary duty to any of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to obligations under this Agreement or any otherwise as an investment adviser of the other Transaction Documents, Fund (except for such actions taken or omitted to be taken the extent specified in Section 36(b) of the Investment Company Act concerning loss resulting from a breach of fiduciary duty (as the Sellers’ Representative’s gross negligence or willful misconduct; same is finally determined by judicial proceedings) with respect to the receipt of compensation for services). The Fund shall indemnify, defend and protect the Indemnified Parties (iiieach of whom shall be deemed a third party beneficiary hereof) the Sellers, jointly and severally, shall defend, indemnify and hold them harmless the Sellers’ Representative from and against any and all lossesdamages, liabilities, damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether or not arising out of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of attorneysany pending, accountantsthreatened or completed action, consultantssuit, investigators, experts investigation or other proceeding (including an action or suit by or in the right of the Fund or its security holders) arising out of or otherwise based upon the performance of any of the Sub-Advisor’s duties or obligations under this Agreement or otherwise as an investment adviser of the Fund. An Indemnified Party may consult with counsel and other professionals and any other reasonable and documented amounts paid accountants in respect of the investigationFund’s affairs and shall be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel and accountants; provided, defensethat such counsel or accountants were selected with reasonable care and such protection is permitted by applicable law, assertionincluding the Investment Company Act. Notwithstanding the foregoing provisions of this Section 9 to the contrary, nothing contained herein shall protect or settlement be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Advisor, the Fund or its security holders to which the Indemnified Parties would otherwise be subject by reason of fraud, willful misfeasance, bad faith or gross negligence in the performance of any claim Indemnified Party’s duties or by reason of the enforcement reckless disregard of any rights the Sub-Advisor’s duties and obligations under this Agreement (as the same shall be determined in accordance with the Investment Company Act and any interpretations or guidance by the SEC or its staff thereunder). (b) the Sub-Advisor agrees to indemnify, defend and protect the Advisor, the Fund and their respective officers, managers, partners, agents, employees, controlling person, members and any other person or entity affiliated with the Advisor and the Fund (collectively, the “Advisor Indemnified Parties”) and hold them harmless from and against all damages, liabilities, costs, demands, charges, claims and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Advisor Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Sub-Advisor) arising directly out of any actions or omissions of the Sub-Advisor or otherwise based upon the performance of any of the other Transaction Documents, whether criminal, civil, administrative, Sub-Advisor’s duties or investigative, based on, arising out of, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with obligations under this Agreement, any of the other Transaction Documents and the Transaction) except for, . Notwithstanding anything in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Law.this

Exculpation; Indemnification. Each Seller hereby agrees that: The Advisor, its members and their respective officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Advisor or its affiliates (ithe “Indemnified Parties”) the Sellers’ Representative shall not be liable to any Seller the Fund for any actions action taken or omitted to be taken under or by the Advisor in connection with this Agreement, the performance of any of the other Transaction Documents, its duties or the Transaction, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; (ii) the Sellers’ Representative shall not owe any fiduciary duty to any of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to obligations under this Agreement or any otherwise as an investment adviser of the other Transaction Documents, Fund (except for such actions taken or omitted to be taken the extent specified in Section 36(b) of the Investment Company Act concerning loss resulting from a breach of fiduciary duty (as the Sellers’ Representative’s gross negligence or willful misconduct; same is finally determined by judicial proceedings) with respect to the receipt of compensation for services). The Fund shall indemnify, defend and protect the Indemnified Parties (iiieach of whom shall be deemed a third party beneficiary hereof) the Sellers, jointly and severally, shall defend, indemnify and hold them harmless the Sellers’ Representative from and against any and all lossesdamages, liabilities, damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether or not arising out of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of attorneysany pending, accountantsthreatened or completed action, consultantssuit, investigators, experts investigation or other proceeding (including an action or suit by or in the right of the Fund or its security holders) arising out of or otherwise based upon the performance of any of the Advisor’s duties or obligations under this Agreement or otherwise as an investment adviser of the Fund. An Indemnified Party may consult with counsel and other professionals and any other reasonable and documented amounts paid accountants in respect of the investigationFund’s affairs and shall be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel and accountants; provided, defensethat such counsel or accountants were selected with reasonable care and such protection is permitted by applicable law, assertionincluding the Investment Company Act. Notwithstanding the foregoing provisions of this Section 7 to the contrary, nothing contained herein shall protect or settlement be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Fund or its security holders to which the Indemnified Parties would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of any claim Indemnified Party’s duties or by reason of the enforcement reckless disregard of any rights the Advisor’s duties and obligations under this Agreement (as the same shall be determined in accordance with the Investment Company Act and any interpretations or guidance by the SEC or its staff thereunder). In addition, notwithstanding anything in this Section 7 to the contrary, nothing contained herein shall protect or be deemed to protect the Advisor or its controlling persons against, or entitle or be deemed to entitle the Advisor or its controlling persons to, indemnification in respect of, any liability to the Fund or its security holders to which the Advisor or its controlling persons would otherwise be subject by reason of (a) a material breach of this Agreement that has a material adverse effect on the Fund, (b) negligence or (c) misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, in the performance of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating to the fact that such Person is the SellersAdvisor’s and/or its controlling persons’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Lawduties.

Exculpation; Indemnification. Each Seller hereby agrees that: (a) Mortgagee shall not directly or indirectly be liable to Mortgagor or any other person as a consequence of (i) the Sellers’ Representative shall not be liable to any Seller for any actions taken or omitted to be taken under or in connection with this Agreement, any exercise of the other Transaction Documentsrights, remedies or powers granted to Mortgagee in this Mortgage (unless the Transaction, except for such actions taken or omitted to be taken resulting from loss is caused by the Sellers’ Representative’s gross negligence or willful misconductmisconduct of Mortgagee); (ii) the Sellers’ Representative shall not owe failure or refusal of Mortgagee to perform or discharge any fiduciary duty obligation or liability of Mortgagor under any agreement related to the Real Property or under this Mortgage; or (iii) any loss sustained by Mortgagor or any third party resulting from Mortgagee's failure to lease the Property, or any portion thereof, after a Default or from any other act or omission of Mortgagee in managing the Sellers as Property after a result of Default (unless the actions taken loss is caused by the Sellers’ Representative pursuant to this Agreement or any of the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; misconduct of Mortgagee) and no such liability shall be asserted against or imposed upon Mortgagee, and all such liability is hereby expressly waived and released by Mortgagor. It is agreed by ▇▇▇▇▇▇▇▇▇ that the liability waived and released by Mortgagor pursuant to the preceding sentence shall include any liability arising from or caused by the sole, joint, active, or passive, concurrent or contributing, negligence or fault of Mortgagee or its agents, and even though such liability is based upon the strict liability of Mortgagee or its agents. (iiib) the Sellers, ▇▇▇▇▇▇▇▇▇ agrees to and does hereby jointly and severallyseverally indemnify, shall defendprotect, indemnify defend and hold save harmless Mortgagee and each of the Sellers’ Representative Banks and their respective directors, trustees, officers, employees, agents, attorneys and shareholders (individually an "Indemnified Party" and collectively the "Indemnified Parties") from and against any and all losses, liabilities, damages, judgmentsexpenses or liabilities of any kind or nature from any investigations, fines, penalties, deficiencies, Taxessuits, claims, demands (in each case, whether or not arising out of a third party claim)other proceedings, including any loss of benefit (including any Tax benefit) and the reasonable and documented feescounsel fees incurred in investigating or defending such claim, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertion, or settlement of any claim or the enforcement of any rights under this Agreement or suffered by any of the other Transaction Documentsthem and caused by, whether criminal, civil, administrative, or investigative, based onrelating to, arising out of, resulting from, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection any way connected with this AgreementMortgage, any of the other Transaction Documents Property, or Mortgagee's exercise or enforcement of any rights or remedies which it may have hereunder; provided, however, ▇▇▇▇▇▇▇▇▇ shall not be obligated to indemnify, protect, defend or save harmless an Indemnified Party if, and to the Transactionextent, the loss, damage, expense or liability was caused by (a) except for, in any case, acts or omissions which involve the gross negligence or willful wilful misconduct of such Indemnified Party, or conduct known (b) the breach of this Mortgage or any other Loan Document by such Indemnified Party or the breach of any laws, rules or regulations by such Indemnified Party (other than those breaches of laws arising from any Borrower's default). In case any action shall be brought against any Indemnified Party based upon any of the above and in respect to which indemnity may be sought against Mortgagor, Mortgagee shall promptly notify Mortgagor in writing, and ▇▇▇▇▇▇▇▇▇ shall assume the defense thereof, including the employment of counsel selected by ▇▇▇▇▇▇▇▇▇ and reasonably satisfactory to Mortgagee, the payment of all costs and expenses and the right to negotiate and consent to settlement. Upon reasonable determination made by an Indemnified Party that such Person counsel would have a conflict representing such Indemnified Party and Mortgagor, the applicable Indemnified Party shall have the right to employ, at the time expense of Mortgagor, separate counsel in any such action and to constitute participate in the defense thereof. Mortgagor shall not be liable for any settlement of any such action effected without their consent, but if settled with ▇▇▇▇▇▇▇▇▇'s consent, or if there be a material violation final judgment for the claimant in any such action, ▇▇▇▇▇▇▇▇▇ agrees to indemnify, defend and save harmless such Indemnified Parties from and against any loss or liability by reason of Lawsuch settlement or judgment. In the event that any Person is adjudged by a court of competent jurisdiction not to have been entitled to indemnification under this Section 5.16, it shall repay all amounts with respect to which it has been so adjudged. If and to the extent that the indemnification provisions contained in this Section 5.16 are unenforceable for any reason, the Mortgagor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations that is permissible under applicable law. The provisions of this Section 5.16 shall survive the termination of this Mortgage and the repayment of the Secured Obligations.

Exculpation; Indemnification. Each Seller hereby agrees that: Subject to Section 9, the Adviser, any Sub-Adviser, each of their respective directors, trustees, officers, shareholders or members (iand their shareholders or members, including the owners of their shareholders or members), agents, employees, controlling persons (as determined under the 1940 Act (“Controlling Persons”)), any other person or entity Affiliated with the Adviser or Sub-Adviser (including each of their respective directors, trustees, officers, shareholders or members (and their shareholders or members, including the owners of their shareholders or members), agents, employees or Controlling Persons) and any other person or entity acting on behalf of, the Sellers’ Representative Adviser or Sub-Adviser (each an “Indemnified Party” and, collectively, the “Indemnified Parties”) shall not be liable to the Fund or any Seller shareholder thereof for any actions action taken or omitted to be taken under by the Adviser or any Sub-Adviser in connection with the performance of any of their duties or obligations under this Agreement or otherwise as an investment adviser of the Fund (except to the extent specified in Section 36(b) of the 1940 Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the receipt of compensation for services), and the Fund shall indemnify, defend and protect the Indemnified Parties (each of whom shall be deemed a third party beneficiary hereof) and hold them harmless from and against all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in satisfaction of judgments, in compromises and settlement, as fines and penalties and legal or other costs and reasonable expenses of investigating or defending against any claim or alleged claim) of any nature whatsoever, known or unknown, liquidated or unliquidated (“Losses”) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Fund or its security holders) arising out of or otherwise based upon the performance of any of the Indemnified Parties’ duties or obligations under this Agreement, any Sub-Advisory Agreement, or otherwise as an investment adviser of the other Transaction Fund to the extent such Losses are not fully reimbursed by insurance and otherwise to the fullest extent such indemnification would not be inconsistent with the Organizational Documents, the 1940 Act, the laws of the State of New York and other applicable law. For any claims indemnified by the Fund under this Section 8, to the fullest extent permitted by, and subject to the applicable conditions of, law, the Fund shall promptly pay expenses (including legal fees and expenses) incurred by any Indemnified Party in appearing at, participating in or defending any action, suit, claim, demand or proceeding in advance of the Transactionfinal disposition of such action, except for such actions taken suit, claim, demand or omitted to be taken resulting proceeding, including appeals, promptly after receipt by the Fund of a statement or statements from the Sellers’ Representative’s gross negligence Indemnified Party requesting such advance or willful misconduct; advances from time to time. Each Indemnified Party hereby undertakes to repay any amounts advanced on its behalf (iiwithout interest) to the Sellers’ Representative shall extent that it is ultimately determined that the Indemnified Party is not owe any fiduciary duty to any of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to this Agreement or any of the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; and (iii) the Sellers, jointly and severally, shall defend, indemnify and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether or not arising out of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertion, or settlement of any claim or the enforcement of any rights entitled under this Agreement or any to be indemnified by the Fund. Such undertaking shall be unsecured and accepted without reference to the financial ability of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating Indemnified Parties to make repayment and without regard to the fact that such Person is Indemnified Parties’ ultimate entitlement to indemnification under the Sellers’ Representative hereunder or arising out other provisions of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Law.

Exculpation; Indemnification. Each Seller hereby agrees that: (ia) BACAP will use its best efforts in providing services to the Sellers’ Representative Fund. BACAP shall not be liable to any Seller the Fund for any actions taken error of judgment or omitted to be taken under mistake of law or for any loss suffered by the Fund in connection with the performance by BACAP of its duties under this Agreement, any except a loss resulting from a breach of fiduciary duty with respect to the other Transaction Documentsreceipt of compensation for services, or the Transaction, except for such actions taken or omitted to be taken a loss resulting from the Sellers’ Representative’s willful misfeasance, bad faith or gross negligence or willful misconduct; (ii) on the Sellers’ Representative shall not owe any fiduciary duty to any part of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to this Agreement BACAP or any of its officers, directors, employees or agents (collectively, the other Transaction Documents"Affiliates") in the performance of their duties under this Agreement, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence reckless disregard by BACAP or willful misconduct; and its Affiliates of their obligations or duties under this Agreement. (iiib) the Sellers, jointly and severally, The Fund shall defend, indemnify and hold harmless the Sellers’ Representative from BACAP and its Affiliates (each, an "Indemnified Person") against any and all losses, claims, damages or liabilities, damagesjoint or several, judgmentsincluding, fineswithout limitation, penaltiesreasonable attorneys' fees and disbursements, deficienciesreasonably incurred by them in connection with, Taxesor resulting from, their actions or inactions in connection with the performance of their duties under this Agreement, except those losses, claims, demands (damages or liabilities resulting from willful misfeasance, bad faith or gross negligence in each case, whether or not arising out the performance by the Indemnified Persons of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertiontheir duties under this Agreement, or settlement the reckless disregard of any claim their obligations or the enforcement of any rights duties under this Agreement or Agreement. (c) Notwithstanding any of the other Transaction Documentsforegoing, whether criminal, civil, administrative, or investigative, based on, arising out the provisions of this paragraph 10 shall not be construed so as to relieve the Indemnified Person of, or relating provide indemnification with respect to, any liability (including liability under Federal securities laws, which under certain circumstances, impose liability even on persons who act in good faith) to the fact extent (but only to the extent) that such Person is the Sellers’ Representative hereunder liability may not be waived, limited or arising out of acts modified under applicable law or omissions of that such Person indemnification would be in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Lawapplicable law, but shall be construed so as to effectuate the provisions of this paragraph 10 to the fullest extent permitted by law.

Exculpation; Indemnification. Each Seller hereby agrees that: (ia) To the Sellers’ Representative greatest extent permitted by law, the Sub-Advisor shall not be liable for any expenses, losses, damages, liabilities, demands, charges and claims of any kind or nature whatsoever (including, without limitation, any legal expenses and costs and expenses relating to investigating or defending any demands, charges and claims) (“Losses”) by or with respect to any Seller matters pertaining to this Agreement or the services provided hereunder, except to the extent that such Losses are actual Losses proven with reasonable certainty, are not speculative, are proven to have been fairly within the contemplation of the parties as of the date hereof, and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have been the direct result of an act or omission taken or omitted by the Sub-Advisor during the term hereof which constitutes gross negligence, willful misconduct, bad faith, illegal conduct or reckless disregard of its obligations under this Agreement. Without limiting the generality of the foregoing, the Sub-Advisor will not be liable for (i) any indirect, special, incidental or consequential damages or other Losses (regardless of whether such damages or other Losses were reasonably foreseeable); (ii) any inaccuracy or breach of the Investment Advisor’s representations, warranties, covenants or agreements contained herein; or (iii) the Investment Advisor’s acts or omissions or any Losses resulting from the Sub-Advisor following the Investment Advisor’s instructions or using inaccurate, outdated or incomplete information furnished by Investment Advisor or any third party. the Sub-Advisor shall not be responsible for any Losses incurred after termination of this Agreement. U.S. federal and state securities laws and ERISA impose liabilities under certain circumstances on persons who act in good faith; nothing herein shall constitute a waiver or limitation of any rights which Investment Advisor may have, if any, under any applicable U.S. federal and state securities laws or ERISA. Except as provided in clause (d) below, the Investment Advisor’s rights under this clause (a) shall be the Investment Advisor’s exclusive remedy for any breach by the Sub-Advisor under this Agreement. (b) To the greatest extent permitted by law, the Investment Advisor agrees that the Sub-Advisor shall have no liability for, and the Investment Advisor agrees to reimburse, indemnify and hold the Sub-Advisor, it affiliates, and their partners, directors, officers and employees and any person controlled by or controlling the Sub-Advisor (collectively, the “Sub-Advisor Indemnified Parties”) harmless from: all Losses that (i) result from: (A) any misrepresentation, act or omission or any alleged misrepresentation, act or omission by the Investment Advisor or the Investment Advisor’s previous or other advisers or agents, (B) any inaccuracy or breach of the Investment Advisor’s representations, warranties, covenants or agreements contained herein, (C) the Sub-Advisor following the Investment Advisor’s agent’s directions or failing to follow the Investment Advisor’s or their unlawful or unreasonable directions, (D) any of the Investment Advisor’s actions or the actions of the Investment Advisor’s previous or other advisers or other agents, or (E) the failure by any person not controlled by the Sub-Advisor to perform any obligations to the Investment Advisor; or (ii) arise out of or relate to any demand, charge or claim in respect of a Sub-Advisor Indemnified Party’s acts, omissions, transactions, duties, obligations or responsibilities arising pursuant to this Agreement, unless (y) a court with appropriate jurisdiction shall have determined by a final judgment that is not subject to appeal that such Sub-Advisor Indemnified Party is liable in respect of the demands, charges and claims referred to in this subparagraph or (z) such the Sub-Advisor Indemnified Party shall have settled such demands, charges and claims without the Investment Advisor’s consent. The Investment Advisor further agrees to indemnify and hold the Sub-Advisor Indemnified Parties harmless from and against all Losses resulting from, in connection with, or arising out of any actions taken or omitted to be not taken under by any of the Sub-Advisor Indemnified Parties in good faith reliance on representations made by or on behalf of the Investment Advisor in this Agreement, which will survive the termination of this Agreement. (c) In the event that any Sub-Advisor Indemnified Party becomes involved in any capacity in any action, proceeding, or investigation brought by or against any person in connection with any matter arising out of or in connection with this Agreement, the Investment Advisor agrees to periodically (but no less than on a quarterly basis) advance funds to (or reimburse) that Sub-Advisor Indemnified Party for the legal and other expenses (including the cost of any investigation and preparation) it expects to incur (or has incurred) in connection therewith, provided that the Sub-Advisor Indemnified Party will promptly repay to the Investment Advisor the amount of any such advanced or reimbursed expenses paid to it if a court having appropriate jurisdiction shall have determined by a final judgment that is not subject to appeal that the Sub-Advisor Indemnified Party is not entitled to be indemnified by the Investment Advisor in connection with such action, proceeding or investigation. (d) The Investment Advisor shall have no liability for and Sub-Advisor agrees to reimburse, indemnify and hold the Investment Advisor, its affiliates (including the Board and Trust Committee) and their respective partners, directors, officers and employees (collectively, the “Investment Advisor Indemnified Parties”), harmless from all expenses, losses or damages that result from Sub-Advisor’s gross negligence, willful misconduct or breach of federal securities laws in connection with the Services provided hereunder unless (i) a court with appropriate jurisdiction shall have determined by a final judgment which is not subject to appeal that such Investment Advisor Indemnified Party is liable in respect of the other Transaction Documentsdemands, charges and claims referred to in this paragraph or the Transaction, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; (ii) the Sellers’ Representative Investment Advisor Indemnified Party shall not owe any fiduciary duty to any of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to this Agreement have settled such demands, charges or any of the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Sellers’ Representativeclaims without Sub-Advisor’s gross negligence or willful misconduct; and (iii) the Sellers, jointly and severally, shall defend, indemnify and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether or not arising out of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertion, or settlement of any claim or the enforcement of any rights under this Agreement or any of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Lawconsent.

Exculpation; Indemnification. Each Seller hereby agrees that: (i1) the Sellers’ Representative Bank (and its directors, officers, employees, attorneys and agents) shall not incur any liability to any Borrower (other than for its (or their) own acts or omissions amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a United States Court of competent jurisdiction) for acts or omissions arising out of or related directly or indirectly to any Loan Document (including, but not limited to, delivery of the Resignation Letter pursuant to subsection 20(c) above); and each Borrower hereby expressly waives any and all claims and actions (other than those attributable to its (or their) own acts or omissions amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a United States Court of competent jurisdiction) against Bank (and its officers, employees, attorneys and agents) arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances. In no event shall Bank be liable to any Seller Borrower for any consequential, punitive or indirect damages, and each Borrower hereby expressly waives any and all claims and actions taken or omitted to for any such damages. (2) Bank (and its directors, officers, employees, attorneys and agents) shall be taken under or in connection with this Agreementindemnified, any reimbursed, held harmless and, at the request of the other Transaction DocumentsBank, or the Transaction, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; (ii) the Sellers’ Representative shall not owe any fiduciary duty to any of the Sellers as a result of the actions taken defended by the Sellers’ Representative pursuant to this Agreement or any of the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; and (iii) the Sellers, jointly and severally, shall defend, indemnify and hold harmless the Sellers’ Representative each Borrower from and against any and all lossesclaims, liabilities, damageslosses and expenses that may be imposed upon, judgmentsincurred by, finesor asserted against Bank (or its directors, penaltiesofficers, deficienciesemployees, Taxes, claims, demands (in each case, whether or not attorneys and agents) arising out of a third party claim)or related directly or indirectly to any Loan Document, including any loss of benefit (including any Tax benefit) and the reasonable and documented feesincluding, costs and expenses of attorneysbut not limited to, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect delivery of the investigation, defense, assertion, or settlement of any claim or Resignation Letter pursuant to subsection 20(c) above (except such as are occasioned by the enforcement of any rights under this Agreement or any of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve indemnified person's own gross negligence or willful misconduct or conduct known as finally determined pursuant to such Person at the time to constitute applicable law by a material violation United States Court of Lawcompetent jurisdiction).

Exculpation; Indemnification. Each Seller hereby agrees that: (a) Mortgagee shall not directly or indirectly be liable to Mortgagor or any other person as a consequence of (i) the Sellers’ Representative shall not be liable to any Seller for any actions taken or omitted to be taken under or in connection with this Agreement, any exercise of the other Transaction Documentsrights, remedies or powers granted to Mortgagee in this Mortgage (unless the Transaction, except for such actions taken or omitted to be taken resulting from loss is caused by the Sellers’ Representative’s gross negligence or willful misconductmisconduct of Mortgagee); (ii) the Sellers’ Representative shall not owe failure or refusal of Mortgagee to perform or discharge any fiduciary duty obligation or liability of Mortgagor under any agreement related to the Property or under this Mortgage; or (iii) any loss sustained by Mortgagor or any third party resulting from Mortgagee's failure to lease the Property, or any portion thereof, after a Default or from any other act or omission of Mortgagee in managing the Sellers as Property after a result of Default (unless the actions taken loss is caused by the Sellers’ Representative pursuant to this Agreement or any of the other Transaction Documents, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; misconduct of Mortgagee) and no such liability shall be asserted against or imposed upon Mortgagee, and all such liability is hereby expressly waived and released by Mortgagor. It is agreed by Mortgagor that the liability waived and released by Mortgagor pursuant to the preceding sentence shall include any liability arising from or caused by the sole, joint, active, or passive, concurrent or contributing, negligence or fault of Mortgagee or its agents, and even though such liability is based upon the strict liability of Mortgagee or its agents. (iiib) the Sellers, Mortgagor agrees to and does hereby jointly and severallyseverally indemnify, shall defendprotect, indemnify defend and hold save harmless Mortgagee and each of the Sellers’ Representative Banks and their respective directors, trustees, officers, employees, agents, attorneys and shareholders (individually an "Indemnified Party" and collectively the "Indemnified Parties") from and against any and all losses, liabilities, damages, judgmentsexpenses or liabilities of any kind or nature from any investigations, fines, penalties, deficiencies, Taxessuits, claims, demands (in each case, whether or not arising out of a third party claim)other proceedings, including any loss of benefit (including any Tax benefit) and the reasonable and documented feescounsel fees incurred in investigating or defending such claim, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertion, or settlement of any claim or the enforcement of any rights under this Agreement or suffered by any of the other Transaction Documentsthem and caused by, whether criminal, civil, administrative, or investigative, based onrelating to, arising out of, resulting from, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection any way connected with this AgreementMortgage, any of the other Transaction Documents Property, or Mortgagee's exercise or enforcement of any rights or remedies which it may have hereunder; provided, however, Mortgagor shall not be obligated to indemnify, protect, defend or save harmless an Indemnified Party if, and to the Transactionextent, the loss, damage, expense or liability was caused by (a) except for, in any case, acts or omissions which involve the gross negligence or willful wilful misconduct of such Indemnified Party, or conduct known (b) the breach of this Mortgage or any other Loan Document by such Indemnified Party or the breach of any laws, rules or regulations by such Indemnified Party (other than those breaches of laws arising from any Borrower's default). In case any action shall be brought against any Indemnified Party based upon any of the above and in respect to which indemnity may be sought against Mortgagor, Mortgagee shall promptly notify Mortgagor in writing, and Mortgagor shall assume the defense thereof, including the employment of counsel selected by Mortgagor and reasonably satisfactory to Mortgagee, the payment of all costs and expenses and the right to negotiate and consent to settlement. Upon reasonable determination made by an Indemnified Party that such Person counsel would have a conflict representing such Indemnified Party and Mortgagor, the applicable Indemnified Party shall have the right to employ, at the time expense of Mortgagor, separate counsel in any such action and to constitute participate in the defense thereof. Mortgagor shall not be liable for any settlement of any such action effected without their consent, but if settled with Mortgagor's consent, or if there be a material violation final judgment for the claimant in any such action, Mortgagor agrees to indemnify, defend and save harmless such Indemnified Parties from and against any loss or liability by reason of Lawsuch settlement or judgment. In the event that any Person is adjudged by a court of competent jurisdiction not to have been entitled to indemnification under this Section 4.16, it shall repay all amounts with respect to which it has been so adjudged. If and to the extent that the indemnification provisions contained in this Section 4.16 are unenforceable for any reason, the Mortgagor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations that is permissible under applicable law. The provisions of this Section 4.16 shall survive the termination of this Mortgage and the repayment of the Secured Obligations.

Exculpation; Indemnification. Each Seller hereby agrees that: (ia) Alkeon will use its best efforts in the Sellers’ Representative supervision and management of the investment activities of the Fund and in providing services hereunder, but Alkeon shall not be liable to any Seller the Fund or BACAP for any actions taken error of judgment or omitted to be taken under mistake of law or for any loss suffered by the Fund or BACAP in connection with the performance by Alkeon of its duties under this Agreement, any except a loss resulting from a breach of fiduciary duty with respect to the other Transaction Documentsreceipt of compensation for services, or the Transaction, except for such actions taken or omitted to be taken a loss resulting from the Sellers’ Representative’s willful misfeasance, bad faith or gross negligence or willful misconduct; (ii) on the Sellers’ Representative shall not owe any fiduciary duty to any part of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to this Agreement Alkeon or any of its officers, directors, employees or agents (collectively, the other Transaction Documents"Affiliates") in the performance of their duties under this Agreement, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence reckless disregard by Alkeon or willful misconduct; and its Affiliates of their obligations or duties under this Agreement. (iiib) the Sellers, jointly and severally, The Fund shall defend, indemnify and hold harmless the Sellers’ Representative from Alkeon and its Affiliates (each, an "Indemnified Person") against any and all losses, claims, damages or liabilities, damagesjoint or several, judgmentsincluding, fineswithout limitation, penaltiesreasonable attorneys' fees and disbursements, deficienciesreasonably incurred by them in connection with, Taxesor resulting from, their actions or inactions in connection with the performance of their duties under this Agreement, except those losses, claims, demands (damages or liabilities resulting from willful misfeasance, bad faith or gross negligence in each case, whether or not arising out the performance by the Indemnified Persons of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertiontheir duties under this Agreement, or settlement the reckless disregard of any claim their obligations or the enforcement of any rights duties under this Agreement or Agreement. (c) Notwithstanding any of the other Transaction Documentsforegoing to the contrary, whether criminal, civil, administrative, or investigative, based on, arising out the provisions of this paragraph 9 shall not be construed so as to relieve the Indemnified Person of, or relating provide indemnification with respect to, any liability (including liability under Federal securities laws, which under certain circumstances, impose liability even on persons who act in good faith) to the fact extent (but only to the extent) that such Person is the Sellers’ Representative hereunder liability may not be waived, limited or arising out of acts modified under applicable law or omissions of that such Person indemnification would be in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Lawapplicable law, but shall be construed so as to effectuate the provisions of this paragraph 9 to the fullest extent permitted by law.

Exculpation; Indemnification. Each Seller hereby agrees that: (i) the Sellers’ Representative Agent shall not be liable (i) in connection herewith except to the extent that its fraud, bad faith, gross negligence or willful misconduct was the cause of any loss to any Seller Party or (ii) for special, incidental, punitive, indirect, or consequential loss or damage of any kind (including but not limited to lost profits). Buyer and the Representative shall severally and not jointly indemnify Agent for any actions taken losses, liabilities, taxes (except taxes imposed on the gross or omitted to be taken under net income of the Agent) and reasonable and documented out-of -pocket expenses (including, without limitation, the reasonable and documented out-of-pocket fees and expenses of outside counsel or experts) arising out of or in connection with this AgreementAgreement or any act, any omission or error of the other Transaction Documents, or the TransactionAgent in connection herewith, except for such actions taken or omitted to be taken resulting from the Sellers’ Representativeextent caused by Agent’s fraud, bad faith, gross negligence or willful misconduct. Notwithstanding anything to the contrary herein, Buyer and Representative agree, solely as between themselves, that any obligation for indemnification under this Section 6 (or for reasonable and documented out-of-pocket fees and expenses of the Agent described in Section 6, other than the fees described in Section 1) shall be borne by the party or parties determined by a court of competent jurisdiction to be responsible for causing the loss, damage, liability, cost or expense against which the Agent is entitled to indemnification or, if no such determination is made, then one half by B▇▇▇▇ and one half by Representative; provided, that, solely as between the Parties, any indemnification of Agent in respect of any loss, damage, liability, cost or expense arising out of any Spreadsheet, or any determination by the Representative in connection therewith, or any payment by Agent in accordance therewith, shall be borne solely by Representative and not by Buyer (ii) this sentence, the Sellers’ Representative “Indemnification Responsibility”). Agent shall have no obligation to make or facilitate any payment unless the applicable Party shall have provided the necessary readily available funds in accordance with the terms hereof to make such payments and shall not owe be liable or responsible for any fiduciary duty delay or failure of a Party or other Person to comply with any of their respective obligations. Notwithstanding anything in this Agreement to the Sellers as a result contrary, in no event shall Buyer or the Representative be liable for incidental, indirect, special, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits) of Agent, even if such Party has been advised of the actions taken likelihood of such loss or damage and regardless of the form of action; provided, this sentence shall not prejudice Agent’s right to be indemnified for losses payable by Agent to third parties. If any amount paid by Buyer or the Sellers’ Representative on account of indemnification obligations owed pursuant to this Agreement or any Section 6 is in excess of the other Transaction Documentsallocations specified in the Indemnification Responsibility above, except the Party that paid such excess amount shall be entitled to reimbursement of such amount. Notwithstanding the foregoing, neither Buyer nor Representative shall be required to indemnify Agent for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence or willful misconduct; and (iii) the Sellers, jointly and severally, shall defend, indemnify and hold harmless the Sellers’ Representative from and against any and all losses, liabilities, damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether taxes or not other expenses arising out of the settlement or compromise of a third party claim), including any loss claim unless Agent shall have provided written notice to the Party that would otherwise be required to provide indemnification hereunder. This Section 6 shall survive the resignation or removal of benefit (including any Tax benefit) Agent and the reasonable and documented fees, costs and expenses termination of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertion, or settlement of any claim or the enforcement of any rights under this Agreement or any of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating to the fact that such Person is the Sellers’ Representative hereunder or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Law.

Exculpation; Indemnification. Each Seller hereby agrees that: (ia) the Sellers’ Representative Lincoln Capital shall not be liable to any Seller the Fund or Lehman Brothers for any actions taken error of judgment or omitted to be taken under mistake of law or for an▇ ▇▇▇▇ suffered by the Fund or Lehman Brothers in connection with the performance by Lincoln Capital ▇▇ ▇▇s duties under this Agreement, any except a loss resulting from a breach of fiduciary duty with respect to the other Transaction Documentsreceipt of compensation for services, or the Transaction, except for such actions taken or omitted to be taken a loss resulting from the Sellers’ Representative’s willful misfeasance, bad faith or gross negligence or willful misconduct; (ii) on the Sellers’ Representative shall not owe any fiduciary duty to any part of the Sellers as a result of the actions taken by the Sellers’ Representative pursuant to this Agreement Lincoln Capital or any of its officers, directors, employees or agents (collectively, the other Transaction Documents"Affiliates") in the performance of their duties under this Agreement, except for such actions taken or omitted to be taken resulting from the Sellers’ Representative’s gross negligence reckless disregard by Lincoln Capital or willful misconduct; and its Affiliates of their obligations or duties under this Agreement. (iiib) the Sellers, jointly and severally, The Fund shall defend, indemnify and hold harmless the Sellers’ Representative from Lincoln Capital and its Affiliates (each, an "Indemnified Person") against any and all losses, claims, damages or liabilities, damagesjoint or several, judgmentsincluding, fineswithout limitation, penaltiesreasonable attorneys' fees and disbursements, deficienciesreasonably incurred by them in connection with, Taxesor resulting from, their actions or inactions in connection with the performance of their duties under this Agreement, except those losses, claims, demands (damages or liabilities resulting from willful misfeasance, bad faith or gross negligence in each case, whether or not arising out the performance by the Indemnified Persons of a third party claim), including any loss of benefit (including any Tax benefit) and the reasonable and documented fees, costs and expenses of attorneys, accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in respect of the investigation, defense, assertiontheir duties under this Agreement, or settlement the reckless disregard of any claim their obligations or the enforcement of any rights duties under this Agreement or Agreement. (c) Notwithstanding any of the other Transaction Documentsforegoing to the contrary, whether criminal, civil, administrative, or investigative, based on, arising out the provisions of this paragraph 9 shall not be construed so as to relieve the Indemnified Person of, or relating provide indemnification with respect to, any liability (including liability under Federal securities laws, which under certain circumstances, impose liability even on persons who act in good faith) to the fact extent (but only to the extent) that such Person is the Sellers’ Representative hereunder liability may not be waived, limited or arising out of acts modified under applicable law or omissions of that such Person indemnification would be in such capacity (including in respect of acts or omissions in connection with this Agreement, any of the other Transaction Documents and the Transaction) except for, in any case, acts or omissions which involve gross negligence or willful misconduct or conduct known to such Person at the time to constitute a material violation of Lawapplicable law, but shall be construed so as to effectuate the provisions of this paragraph 9 to the fullest extent permitted by law.