Navigating Indemnification and Exculpation Provisions in Fund Documents (Part One of Two)

Periodically, the Standards Board for Alternative Investments (SBAI) – an association of alternative investment managers – publishes “toolbox” memos on topics of interest to the alternative investment industry. Its latest toolbox memo (Memo) covers indemnification and exculpation provisions in private fund governing documents. This two-part series explores the key issues raised in the Memo and associated market practice on indemnification rights, with commentary from Maria Long, SBAI content/research director; Christopher J. Dlutowski, partner at Morgan Lewis; James Oussedik, partner at Sidley Austin; and Nick Hoffman and James Smith, partner and counsel, respectively, at Harneys. This first article addresses key concerns with indemnification provisions and associated negotiating points; common indemnification terms and carve-outs; and jurisdictional differences in standards of care. The second article will explore indemnification by investors; the interplay between indemnification and exculpation clauses and between indemnification provisions and insurance; the limited opportunity to negotiate indemnification provisions; and the role of side letters. For coverage of another recent SBAI release, see our two-part series on avoiding parallel fund conflicts: “New SBAI Standards and Case Study Provide Guidance for Mitigating Conflicts” (May 5, 2020); and “Specific PE, Real Estate and Private Credit Issues and Mitigation Tips” (May 12, 2020).

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