Common use of Of the Advisor Clause in Contracts

Of the Advisor. Subject to the provisions of Section 3 of this Agreement, the Advisor, and each officer, director, shareholder and employee of the Advisor, and each person who controls the Advisor, shall be indemnified, defended, and held harmless by Series J and the Managing Owner, jointly and severally, from and against any and all claims, losses, judgments, liabilities, damages, costs, expenses (including, without limitation, reasonable investigatory and attorneys’ fees and expenses) and amounts paid in settlement of any claims in compliance with the conditions specified below (collectively, “Losses”) sustained by the Advisor (i) in connection with any acts or omissions of the Advisor, or any of its officers, directors or employees relating to its management of the Allocated Assets, including in connection with this Agreement or otherwise as a result of the Advisor’s performance of services on behalf of Series J or its role as trading advisor to the Allocated Assets and (ii) as a result of a material breach of this Agreement by Series J or the Managing Owner, provided that, (1) such Losses were not the result of negligence, misconduct or a material breach of this Agreement on the part of the Advisor, and its officers, directors, shareholders and employees, and each person controlling the Advisor, (2) the Advisor, and its officers, directors, shareholders and employees, and each person controlling the Advisor, acted in good faith and in a manner reasonably believed by such person to be in or not opposed to the best interests of Series J and (3) any such indemnification will only be recoverable from the Allocated Assets and the assets of the Managing Owner and not from any other assets of Series J or the other Series of the Trust, and provided further, that no indemnification shall be permitted under this Section 2 for amounts paid in settlement if either (A) the Advisor fails to notify Series J of the terms of any settlement proposed, at least fifteen (15) days before any amounts are paid, or (B) Series J does not approve the amount of the settlement within fifteen (15) days (such approval not to be withheld unreasonably). Notwithstanding the foregoing, Series J shall, at all times, have the right to offer to settle any matter for a monetary amount with the approval of the Advisor (which approval shall not be withheld unreasonably) and if Series J successfully negotiates a monetary settlement and tenders payment therefore to the party claiming indemnification (the “Indemnitee”) the Indemnitee must either use commercially reasonable efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of Series J to the Indemnitee shall be the amount of said proposed settlement; provided, however, that nothing herein contained shall require the Indemnitee to accept any settlement which has provisions requiring anything other than payment of a monetary amount.

Of the Advisor. Subject to the provisions of Section 3 of this Agreement, the Advisor, and each officer, director, shareholder and employee of the Advisor, and each person who controls the AdvisorAdvisor (each, and “Advisor Indemnitee”), shall be indemnified, defended, and held harmless by Series J and the Managing Owner, jointly and severally, from and against any and all claims, losses, judgments, liabilities, damages, costs, expenses (including, without limitation, reasonable investigatory and attorneys’ fees and expenses) and amounts paid in settlement of any claims in compliance with the conditions specified below (collectively, “Losses”) sustained by the Advisor (i) in connection with any acts or omissions of the Advisor, or any of its officers, directors or employees relating to its management of the Allocated Assets, including in connection with this Agreement or otherwise as a result of the Advisor’s performance of services on behalf of Series J or its role as trading advisor to the Allocated Assets and (ii) as a result of a material breach of this Agreement by Series J or the Managing Owner, provided that, (1) such Losses were not the result of gross negligence, willful misconduct or a material breach of this Agreement on the part of the Advisor, and its officers, directors, shareholders and employees, and each person controlling the Advisor, (2) the Advisor, and its officers, directors, shareholders and employees, and each person controlling the Advisor, acted in good faith and in a manner reasonably believed by such person to be in or not opposed to the best interests of Series J and (3) any such indemnification will only be recoverable from the Allocated Assets and the assets of the Managing Owner and not from any other assets of Series J or the other Series of the Trust, and provided further, that no indemnification shall be permitted under this Section 2 for amounts paid in settlement if either (A) the Advisor fails to notify Series J of the terms of any settlement proposed, at least fifteen (15) days before any amounts are paid, or (B) Series J does not approve the amount of the settlement within fifteen (15) days (such approval not to be withheld unreasonably). Notwithstanding the foregoing, Series J shall, at all times, have the right to offer to settle any matter for a monetary amount with the approval of the Advisor (which approval shall not be withheld unreasonably) and if Series J successfully negotiates a monetary settlement and tenders payment therefore to Advisor Indemnitee, the party claiming indemnification (the “Indemnitee”) the Advisor Indemnitee must either use commercially reasonable efforts to dispose of the matter in accordance with the terms and conditions of the proposed settlement or the Advisor Indemnitee may refuse to settle the matter and continue its defense in which latter event the maximum liability of Series J to the Advisor Indemnitee shall be the amount of said proposed settlement; provided, however, that nothing herein contained shall require the Advisor Indemnitee to accept any settlement which has provisions requiring anything other than payment of a monetary amount.