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 insights 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 its Responsible Investment Policy Framework: “Four Ways to Incorporate Into Investment Strategies” (Apr. 15, 2021); and “Three Key Considerations for Fund Managers” (Apr. 22, 2021).

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