Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•], 2014 UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “Adviser”) with the matters set forth in the Structuring Fee Agreement, dated September [•], 2014, between the Adviser and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser or its partners or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents), on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Form of Structuring Fee Agreement (Goldman Sachs MLP & Energy Renaissance Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities 2020 Xxxxx Fargo Securities, LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities Xxxxx Fargo Securities, LLC (the “UBSBank”) to advise and assist the undersigned undersigned, Aberdeen Standard Investments Inc., together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “AdviserCompany”) with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2020 between the Adviser Company and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly Promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser Company in writing of the commencement thereof; but the failure so to notify the Adviser Company (i) will not relieve the Adviser Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser Company from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by the Bank. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Party. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Bank, on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Company if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Company was not guilty of such fraudulent misrepresentation. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser in connection Company with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Aberdeen Standard Global Infrastructure Income Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 2020 UBS Securities LLC 000 Xxxx 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•[ ], 20142020, between the Adviser Company and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)UBS, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX AMUNDI ASSET MANAGEMENTMANAGEMENT US, L.P. INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to UBS Structuring Fee Agreement] Indemnification Agreement September [•August [ ], 2014 2021 UBS Securities LLC 000 Xxxx 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwisetogether with its successors and assigns, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•August [ ], 2014, 2021 between the Adviser Company and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreementsuch Proceeding, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the bad faith, gross negligence or willful misconduct (including bad faith) of UBS. The indemnification provided hereunder shall not extend to those matters indemnified under the Underwriting Agreement, dated August [ ], 2021, by and among Pioneer Municipal High Income Opportunities Fund, Inc. (the “Fund”), Amundi Asset Management US, Inc. and each of the underwriters named therein. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreementsuch Proceeding, the Adviser Company will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has becomes final in that it is no longer subject to appeal or other review, that such legal and other expenses resulted primarily from the bad faith, gross negligence or willful misconduct of UBS in performing the services that are the subject of the Agreement. As promptly Promptly as reasonably practicable after receipt by UBS of notice of the commencement of any ProceedingProceeding with respect to which indemnity is sought hereunder, UBS will, if a claim in respect thereof is to be made under this paragraph, will notify the Adviser Company in writing of the commencement thereof; but provided that the failure to so to notify the Adviser Company (i) will not relieve the Adviser Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser Company from any liability which it may have otherwise than on account of this Indemnification Agreement. The Company may assume the defense of any such Proceeding, including the employment of counsel reasonably satisfactory to UBS. UBS shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of UBS, unless (i) the Company shall have failed promptly to assume the defense thereof and employ counsel as provided above or (ii) the named parties to any such Proceeding (including impleaded parties) include UBS and the Company, and UBS shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the Company, provided that the Company shall not in any event be responsible hereunder for the fees and expenses of more than one firm of separate counsel in connection with any Proceeding in the same jurisdiction, in addition to any local counsel. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided thatprovided, that in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)UBS, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS Securities LLC or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily from the bad faith, gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. EACH OF UBS AND THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER THEREON AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER SUCH PARTY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS AMUNDI ASSET MANAGEMENTMANAGEMENT US, L.P. INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Pioneer Municipal High Income Opportunities Fund, Inc.)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] APPENDIX A Indemnification Agreement September [•[ ], 2014 UBS Securities 2020 RBC Capital Markets, LLC Three World Financial Center, 8th Floor 000 Xxxx Xxxxxx Xxx XxxxXxxxx Xxxxxx, Xxx Xxxx 00000 New York, New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (“UBSRBCCM”) to advise and assist the undersigned undersigned, Aberdeen Standard Investments Inc. (including any successor or assign by merger or otherwisetogether with its affiliates, subsidiaries, successors and assigns, the “AdviserCompany”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2020 between the Adviser Company and UBS RBCCM (the “Agreement”), the Company shall indemnify and hold harmless RBCCM and its affiliates and their respective employees, directors, officers, consultants, agents and persons deemed to be in control of RBCCM or any of its affiliates within the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) meaning of the Securities Act of 1933 (collectively, a the “ProceedingIndemnified Parties” and individually an “Indemnified Party”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law), from and against any claims, losses, claimsexpenses, damagesdamages and liabilities, liabilities and expenses in connection with any matter relating to joint or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other handseveral, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser or its partners or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents), on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity they may be sought hereunderincurred, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising in any manner out of such Proceeding and (ii) does not impose any actual transaction, proposal or potential liability upon UBS and does not contain any factual other matter contemplated by the engagement of RBCCM under the Agreement, or legal admission by or otherwise in connection with services provided with respect to UBS a potential transaction whether prior to or any adverse statement with respect subsequent to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and date hereof (the successors and assigns of all of the foregoing persons“Matters”). The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company also agrees that neither UBS RBCCM nor any of its affiliates, directors, agents, employees or controlling persons other Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Adviser Company or any person asserting claims on behalf of its affiliates, partners, directors, officers, consultants, agents, employees, controlling persons, creditors or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that securityholders for any losses, claims, damages, liabilities or expenses related to or arising out of the Agreement or any Matters. The Company will promptly reimburse any Indemnified Party for all costs and expenses as reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faithbut not limited to fees, costs and expenses of counsel(s) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”expert(s), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under investigation of, preparation for or defense of, responding to third-party subpoenas related to, preparing to serve or serving as a witness with respect to, and/or providing evidence in, or otherwise relating to any pending or threatened claim related to or arising in any manner out of the Agreement notwithstanding or any Matters, or any action or proceeding arising therefrom, whether or not any Indemnified Party is, or is threatened to be, a formal party to such pending or threatened litigation or other proceeding. Without the prior written consent of RBCCM, (A) neither the Company nor any member of the Company’s Board of Directors shall settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened litigation or other proceeding relating to the Agreement or any Matters (whether or not any Indemnified Party is, or is threatened to be, a formal party to such pending or threatened litigation or other proceeding) and (B) the Company shall not participate in or facilitate any such settlement, compromise, consent or termination on behalf of UBS’ engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser Company’s Board of Directors unless in each of (A) and UBS (B) such settlement, compromise, consent or termination (i) includes an express, complete and unconditional release of RBCCM and its affiliates (and their respective successors control persons, partners, directors, officers, employees, consultants and assigns agents) with respect to all claims asserted in such litigation or relating to the Agreement or any Matters (such release to be set forth in an instrument signed by all parties to such settlement, compromise, consent or termination) and (ii) does not include any successor statement as to, or assign any admission of, fault, culpability or failure to act by or on behalf of any substantial portion Indemnified Party. Without the prior written consent of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterpartsCompany, each of which shall not be deemed an originalunreasonably withheld, but all of delayed or conditioned, no Indemnified Party shall settle or compromise any claim for which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:indemnification or contribution may be
Appears in 1 contract
Samples: Structuring Fee Agreement (Aberdeen Standard Global Infrastructure Income Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Form of Indemnification Agreement September [•●], 2014 2020 UBS Securities LLC 000 Xxxx 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with respect to the matters set forth in the Structuring Fee Agreement, dated September [•●], 2014, 2020 between the Adviser Company and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including or bad faith) faith of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser Company in writing of the commencement thereof; but the failure so to notify the Adviser Company (i) will not relieve the Adviser Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve relief the Adviser Company from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its limited partners and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its limited partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its limited partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its limited partners or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agentsagents ), on the one hand, or by UBS (or its employees or other agents), on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayedin the case of a Proceeding involving only the payment of money damages), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily from the gross negligence or willful misconduct (including or bad faith) faith of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “DoubleLine Yield Opportunities Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more any number of counterparts, each of which shall be deemed an original, but all of which which, when taken together, shall constitute one and the same agreement. Delivery of an executed signature page of this Indemnification Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Fee Agreement (DoubleLine Yield Opportunities Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] APPENDIX A Indemnification Agreement September [•[ ], 2014 UBS Securities 2020 RBC Capital Markets, LLC Three World Financial Center, 8th Floor 000 Xxxx Xxxxxx Xxx XxxxXxxxx Xxxxxx, Xxx Xxxx 00000 New York, New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (“UBSRBCCM”) to advise and assist the undersigned undersigned, Angel Oak Capital Advisors, LLC (including any successor or assign by merger or otherwisetogether with its affiliates, subsidiaries, successors and assigns, the “AdviserCompany”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2020 between the Adviser Company and UBS RBCCM (the “Agreement”), the Company shall indemnify and hold harmless RBCCM and its affiliates and their respective employees, directors, officers, consultants, agents and persons deemed to be in control of RBCCM or any of its affiliates within the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) meaning of the Securities Act of 1933 (collectively, a the “ProceedingIndemnified Parties” and individually an “Indemnified Party”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law), from and against any claims, losses, expenses, damages and liabilities, joint or several, as they may be incurred, related to or arising in any manner out of any transaction, proposal or any other matter contemplated by the engagement of RBCCM under the Agreement, or otherwise in connection with services provided with respect to a potential transaction whether prior to or subsequent to the date hereof (the “Matters”). The Company also agrees that neither RBCCM nor any other Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company or its affiliates, partners, directors, officers, consultants, agents, employees, controlling persons, creditors or securityholders for any losses, claims, damages, liabilities and or expenses in connection with any matter relating related to or referred to in the Agreement or arising out of the matters contemplated Agreement or any Matters. The Company will promptly reimburse any Indemnified Party for all costs and expenses as reasonably incurred (including but not limited to fees, costs and expenses of counsel(s) and expert(s)) in connection with the investigation of, preparation for or defense of, responding to third-party subpoenas related to, preparing to serve or serving as a witness with respect to, and/or providing evidence in, or otherwise relating to any pending or threatened claim related to or arising in any manner out of the Agreement or any Matters, or any action or proceeding arising therefrom, whether or not any Indemnified Party is, or is threatened to be, a formal party to such pending or threatened litigation or other proceeding. Without the prior written consent of RBCCM, (A) neither the Company nor any member of the Company’s Board of Directors shall settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened litigation or other proceeding relating to the Agreement or any Matters (whether or not any Indemnified Party is, or is threatened to be, a formal party to such pending or threatened litigation or other proceeding) and (B) the Company shall not participate in or facilitate any such settlement, compromise, consent or termination on behalf of the Company’s Board of Directors unless in each of (A) and (B) such settlement, compromise, consent or termination (i) includes an express, complete and unconditional release of RBCCM and its affiliates (and their respective control persons, partners, directors, officers, employees, consultants and agents) with respect to all claims asserted in such litigation or relating to the Agreement or any Matters (such release to be set forth in an instrument signed by all parties to such settlement, compromise, consent or termination) and (ii) does not include any statement as to, or any admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. Without the Agreementprior written consent of the Company, includingwhich shall not be unreasonably withheld, delayed or conditioned, no Indemnified Party shall settle or compromise any claim for which indemnification or contribution may be sought hereunder. Notwithstanding the foregoing sentence, if at any time an Indemnified Party requests that the Company reimburse the Indemnified Party for fees, costs and expenses as provided in this Appendix A, the Company shall be liable for any settlement of any proceeding effected without limitationits prior written consent if (i) such settlement is entered into more than thirty (30) days after receipt by it of the request for reimbursement, related services and activities provided (ii) it shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of the Agreement, except such settlement. Notwithstanding any provision herein to the extent contrary, the Company shall not be liable hereunder for indemnification to an Indemnified Party, and the Indemnified Party shall not be exculpated, in respect of any claims, losses, expenses, damages and liabilities that it shall be determined by a court of competent jurisdiction are finally judicially determined, in a judgment that has become final in that it is no longer subject non-appealable judgment, to appeal or other review that such losses, claims, damages, liabilities and expenses have resulted primarily and directly from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In additionThe Company agrees that if any exculpation, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter relating indemnification or reimbursement sought pursuant to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS were for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were reason not to be available for to any reasonIndemnified Party or insufficient to hold any Indemnified Party harmless as and to the extent contemplated hereby, then the Adviser agrees to Company shall contribute to the losses, amount paid or payable by the Indemnified Party as a result of the claims, damages, losses, expenses and liabilities and expenses involved in such proportion as is appropriate (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners and affiliates and other constituencies, securityholders on the one hand, and UBS, RBCCM on the other hand, in connection with the matters contemplated by the Agreement services of RBCCM to which such exculpation, indemnification or reimbursement relates or (ii) if (but only if and to the extent) the allocation provided for in clause (i) on that basis is for any reason held unenforceablenot permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Adviser and its partners and affiliates and other constituencieseach such Indemnified Party, on the one handrespectively, and the party entitled to contribution, on the other hand, Company as well as any other relevant equitable considerations. The Adviser agrees Company and RBCCM agree that it would not be just and equitable if the contribution provided for herein were determined by pro rata allocation or any other method which does not take into account the purposes of this paragraph equitable considerations referred to above. It is hereby agreed that the relative benefits received, or sought to be received, by the Adviser and its partners and affiliates and other constituenciesCompany, on the one hand, and the party entitled to contributionRBCCM, on the other hand, in connection with the matters contemplated by the Agreement respect to this engagement shall be deemed to be in the same proportion that as (i) the total value received gross proceeds raised or paid or contemplated anticipated to be received or paid by the Adviser or its partners or affiliates and other constituencies, as the case may be, as a result of or raised in connection with with, the matters transaction (whether or not consummated) ), as applicable, for which UBS has been retained RBCCM is engaged to perform render financial advisory services bears to (ii) the fees fee paid to UBS under the Agreement; provided that, RBCCM in connection with such engagement. In no event shall the Adviser RBCCM contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the terms of the Agreement. Relative fault The Company agrees that the exculpation, indemnification, reimbursement and contribution obligations of the Company set forth herein shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents), on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, apply whether or not UBS any Indemnified Party is an actual or potential a formal party to such Proceedingany claim, without UBS’ prior written consent (which consent shall not be unreasonably withheld action or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect proceeding relating to the characterAgreement or the Matters. Such obligations of the Company, professionalismas well as the Company’s obligations regarding the settlement of pending or threatened litigation or other proceedings, due care, loyalty, expertise or reputation shall survive the termination of UBS or any action or inaction by UBS. For purposes of this Indemnification the Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party liability which the Company may otherwise have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons and shall have any liability be binding upon and inure to the Adviser or benefit of any person asserting claims on behalf of or in right successors, assigns, heirs and personal representatives of the Adviser Company or an Indemnified Party. Prior to entering into any agreement or arrangement with respect to, or effecting, any transaction that is reasonably likely to impair the Company’s ability to meet its current and potential future obligations pursuant to this Appendix A, the Company shall promptly notify RBCCM in connection with or as a result writing thereof and, if requested by RBCCM, shall arrange alternative means of either UBS’ engagement under providing for the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date obligations of the Agreement, except Company set forth herein upon terms and conditions satisfactory to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated herebyRBCCM. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE ADVISER INDEMNIFIED PARTIES AND THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER INDEMNIFIED PARTY OR THE COMPANY, RESPECTIVELY, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER SUCH PARTY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. Capitalized terms used in this Appendix A and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET RIVERNORTH CAPITAL MANAGEMENT, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•●], 2014 UBS Securities 2021 RBC Capital Markets, LLC 000 Xxxx 200 Xxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (( “UBSRBCCM”) to advise and assist the undersigned undersigned, RiverNorth Capital Management, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•●], 2014, 2021 between the Adviser and UBS RBCCM (the “Agreement”), in the event that UBS RBCCM, any of its affiliates, each other person, if any, controlling RBCCM or any of its affiliates, their respective officers, current or former directors, employees and agents, or the successors or assigns of any of the foregoing persons (RBCCM and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed under the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed under the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding in connection with any matter relating respect to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and expenses resulted primarily and directly from the gross negligence or willful misconduct of such Indemnified Party. Counsel shall be selected by RBCCM. In no event shall the Adviser be liable for the fees and expenses of more than one counsel (in addition to any local counsel reasonably required) separate from their own counsel for the Indemnified Parties. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the indemnified party. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The Adviser may participate at its own expense in the defense of any such action; provided, however, that counsel to the Adviser shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Parties. The Adviser shall not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall, without the prior written consent of the Adviser (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder when the Adviser is an actual named party thereto, unless such settlement, compromise or consent (i) includes an unconditional release of the Adviser from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the Adviser. If such indemnification were not to be available for any reason, other than a final judicial determination of RBCCM’s gross negligence, bad faith, or willful misconduct in performing the services that are the subject of the Agreement, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser or its partners members or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS RBCCM has been retained to perform financial services bears to the fees paid to UBS RBCCM under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS RBCCM (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was not guilty of such fraudulent misrepresentation, or that any losses, claims, damages, liabilities (or expenses related thereto) are determined to have resulted from the gross negligence, willful misconduct or bad faith of any Indemnified Party and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence, willful misconduct or bad faith of the Adviser. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the RBCCM’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement Indemnification Agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of matters contemplated by the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS RBCCM or any of its affiliates, directors, employees or controlling persons in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund bind, RiverNorth Flexible Municipal Income Fund, Inc. (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE MATTERS CONTEMPLATED BY THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE INDEMNIFIED PARTIES AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE INDEMNIFIED PARTIES AND THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS INDEMNIFIED PARTIES AND THE ADVISER, AS THE CASE MAY BE, ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENTJUDGMENT OR OTHER AVAILABLE JUDICIAL PROCESS. Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET RIVERNORTH CAPITAL MANAGEMENT, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (RiverNorth Flexible Municipal Income Fund II, Inc.)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities 2020 Xxxxx Fargo Securities, LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities Xxxxx Fargo Securities, LLC (the “UBSBank”) to advise and assist the undersigned undersigned, Angel Oak Capital Advisors, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “AdviserCompany”) with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2020 between the Adviser Company and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly Promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser Company in writing of the commencement thereof; but the failure so to notify the Adviser Company (i) will not relieve the Adviser Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser Company from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by the Bank. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Party. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Bank, on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Company if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Company was not guilty of such fraudulent misrepresentation. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser in connection Company with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. [Signature Page Follows] The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTVery truly yours, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: Name: Title: [Signature page Page to Structuring Fee Agreement] Form of Indemnification Agreement September February [•], 2014 UBS Securities LLC 000 Xxxx Xxxxxx 2020 Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx XxxxXxxxx Xxxxxx, Xxx Xxxx 00xx Xxxxx Xxxxxxxxx, XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxxx, Xxxxxxxx & Company, Incorporated (the “UBSBank”) to advise and assist the undersigned undersigned, DoubleLine Capital LP, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September February [•], 2014, 2020 between the Adviser and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The indemnifying party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the indemnified party to represent the Indemnified Party and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the indemnifying party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing and unresolvable interests between them. No indemnifying party shall, without the prior written consent of the Indemnified Parties (which may not be unreasonably withheld, delayed or deferred), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners owners and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners owners and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners owners and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser or its partners or affiliates owners and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS the Bank (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser or the Fund was not guilty of such fraudulent misrepresentation. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser or the Fund resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance bind, DoubleLine Yield Opportunities Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. This Agreement together with the Structuring Fee Agreement constitutes the final and entire agreement and understanding between the parties to this Agreement relative to the subject matter of this Agreement and supersedes all prior agreements and understandings (whether written or oral) between such parties concerning the subject matter of this Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:.
Appears in 1 contract
Samples: Fee Agreement (DoubleLine Yield Opportunities Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: DOUBLELINE CAPITAL LP By: Name: Title: [Signature page Page to Structuring Sales Incentive Fee Agreement] Agreed and Accepted: [●] By: Name: Title: [Signature Page to Sales Incentive Fee Agreement] SCHEDULE I Name Fee Indemnification Agreement September February [•●], 2014 UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 2020 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC the undersigned (the “UBSBanks”) to advise and assist the undersigned undersigned, DoubleLine Capital LP (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Sales Incentive Fee Agreement, Agreement dated September February [•●], 2014, 2020 between the Adviser and UBS the Banks (the “Agreement”), in the event that UBS the Banks, any of their respective affiliates, each other person, if any, controlling the Banks or any of their respective affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Banks and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly as is reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by such Indemnified Party. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Party. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners and affiliates and other constituenciesstockholders, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners and affiliates and other constituenciesstockholders, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners and affiliates and other constituenciesstockholders, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser or its partners or affiliates and other constituenciesstockholders, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS has the Banks have been retained to perform financial services bears to the fees paid to UBS the Banks under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Banks pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agentsagents (not including for these purposes any Bank)), on the one hand, or by UBS the respective Bank (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was not guilty of such fraudulent misrepresentation or that any losses, claims, damages, liabilities (or expenses relating thereto) are determined to have resulted from the gross negligence, willful misconduct or bad faith of any Indemnified Person and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence, willful misconduct or bad faith of the Adviser. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Banks in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in relation to the Adviser herein, does not include any registered investment company for which the Adviser or any of its affiliates serves as investment adviser. Nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance DoubleLine Yield Opportunities Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS ANY BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. EACH OF THE BANKS AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON SUCH BANK AND THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH SUCH BANK AND THE ADVISER IS ADVISER, AS THE CASE MAY BE, ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: [●] By: Name: Title:
Appears in 1 contract
Samples: Form Sales Incentive Fee Agreement (DoubleLine Yield Opportunities Fund)
Applicability to the Fund. Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Qualifying Underwriter Structuring Fee Agreement] Agreed and Accepted: [ ] By: Name: Title: [Signature page to Qualifying Underwriter Structuring Fee Agreement] Schedule I Qualifying Underwriter Fee Percentage of the total price to the public of the shares sold by the Fund in the Offering Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 2020 Ladies and Gentlemen: In connection with Reference is made to the engagement of UBS Securities LLC Structuring Fee Agreement (the “UBSAgreement”) to advise and assist ), dated [ ], 2020, between the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) and each Qualifying Underwriter listed on Schedule I thereto (each a “Qualifying Underwriter”). In connection with the engagement of each Qualifying Underwriter to advise and assist the Company with the matters set forth in the Structuring Fee Agreement, dated September [•], 2014, between the Adviser and UBS (the “Agreement”), in the event that UBS a Qualifying Underwriter becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS the Qualifying Underwriter harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or Agreement, arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBSthe Qualifying Underwriter. In addition, in the event that UBS a Qualifying Underwriter becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS the Qualifying Underwriter for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS the Qualifying Underwriter in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBSthe Qualifying Underwriter, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS the Qualifying Underwriter has been retained to perform financial services bears to the fees paid to UBS the Qualifying Underwriter under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS the Qualifying Underwriter is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Qualifying Underwriter pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Qualifying Underwriter, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS the Qualifying Underwriter is an actual or potential party to such Proceeding, without UBS’ the Qualifying Underwriter’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS the Qualifying Underwriter shall include UBS Securities LLCthe Qualifying Underwriter, any of its affiliates, each other person, if any, controlling UBS the Qualifying Underwriter or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS a Qualifying Underwriter nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ the Qualifying Underwriter’s engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Qualifying Underwriter in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE QUALIFYING UNDERWRITERS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE QUALIFYING UNDERWRITER OR ANY INDEMNIFIED PARTY. EACH OF UBS THE QUALIFYING UNDERWRITERS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBSthe Qualifying Underwriters’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS the Qualifying Underwriters and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBSthe Qualifying Underwriters’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: [Signature Page to Qualifying Underwriter Indemnification Agreement] Agreed and Accepted: [ ] By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page Page to Structuring Fee Agreement] Form of Indemnification Agreement September February [•], 2014 UBS Securities 2020 RBC Capital Markets, LLC 000 Xxxx Xxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (( “UBSRBCCM”) to advise and assist the undersigned undersigned, DoubleLine Capital LP, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September February [•], 2014, 2020 between the Adviser and UBS RBCCM (the “Agreement”), in the event that UBS RBCCM, any of its affiliates, each other person, if any, controlling RBCCM or any of its affiliates, their respective officers, current or former directors, employees and agents, or the successors or assigns of any of the foregoing persons (RBCCM and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed under the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed under the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding in connection with any matter relating respect to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and expenses resulted primarily and directly from the gross negligence or willful misconduct of such Indemnified Party. Counsel shall be selected by RBCCM. In no event shall the Adviser be liable for the fees and expenses of more than one counsel (in addition to any local counsel reasonably required) separate from their own counsel for the Indemnified Parties. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the indemnified party. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The Adviser may participate at its own expense in the defense of any such action; provided, however, that counsel to the Adviser shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Parties. The Adviser shall not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall, without the prior written consent of the Adviser (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder when the Adviser is an actual named party thereto, unless such settlement, compromise or consent (i) includes an unconditional release of the Adviser from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the Adviser. If such indemnification were not to be available for any reason, other than a final judicial determination of RBCCM’s gross negligence, bad faith, or willful misconduct in performing the services that are the subject of the Agreement, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser or its partners members or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS RBCCM has been retained to perform financial services bears to the fees paid to UBS RBCCM under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS RBCCM (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was not guilty of such fraudulent misrepresentation, or that any losses, claims, damages, liabilities (or expenses related thereto) are determined to have resulted from the gross negligence, willful misconduct or bad faith of any Indemnified Party and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence, willful misconduct or bad faith of the Adviser. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the RBCCM’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement Indemnification Agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of matters contemplated by the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS RBCCM or any of its affiliates, directors, employees or controlling persons in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance bind, DoubleLine Yield Opportunities Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE MATTERS CONTEMPLATED BY THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE INDEMNIFIED PARTIES AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE INDEMNIFIED PARTIES AND THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS INDEMNIFIED PARTIES AND THE ADVISER, AS THE CASE MAY BE, ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENTJUDGMENT OR OTHER AVAILABLE JUDICIAL PROCESS. Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: ByBy : Name: Title:
Appears in 1 contract
Samples: Fee Agreement (DoubleLine Yield Opportunities Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXXXXXXX & CO. INC. By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx 2019 Xxxxxxxxxxx & Co. Inc. 00 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxxxxxxxx & Co. Inc. (“UBSOppenheimer”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•[ ], 20142019, between the Adviser Company and UBS Oppenheimer (the “Agreement”), in the event that UBS Oppenheimer becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS Oppenheimer harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBSOppenheimer. In addition, in the event that UBS Oppenheimer becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS Oppenheimer for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS Oppenheimer in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBSOppenheimer, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS Oppenheimer has been retained to perform financial services bears to the fees paid to UBS Oppenheimer under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS Oppenheimer is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS Oppenheimer pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)Oppenheimer, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS Oppenheimer is an actual or potential party to such Proceeding, without UBS’ Xxxxxxxxxxx’x prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS Oppenheimer shall include UBS Securities LLCXxxxxxxxxxx & Co, Inc., any of its affiliates, each other person, if any, controlling UBS Oppenheimer or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS Oppenheimer nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ Xxxxxxxxxxx’x engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS Oppenheimer in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS OPPENHEIMER CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OPPENHEIMER OR ANY INDEMNIFIED PARTY. EACH OF UBS OPPENHEIMER AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the AgreementXxxxxxxxxxx’x engagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS Oppenheimer and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ Xxxxxxxxxxx’x respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXXXXXXX & CO. INC. By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET XXXXXXXXX INVESTMENT MANAGEMENT, L.P. INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•]July 27, 2014 UBS Securities 2021 RBC Capital Markets, LLC 000 Xxxx Xxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (( “UBSRBCCM”) to advise and assist the undersigned undersigned, Xxxxxxxxx Investment Management, Inc., together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Fee AgreementAgreement dated July 27, dated September [•], 2014, 2021 between the Adviser and UBS RBCCM (the “Agreement”), in the event that UBS RBCCM, any of its affiliates, each other person, if any, controlling RBCCM or any of its affiliates, their respective officers, current or former directors, employees and agents, or the successors or assigns of any of the foregoing persons (RBCCM and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed under the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed under the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding in connection with any matter relating respect to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and expenses resulted primarily and directly from the gross negligence or willful misconduct (including bad faith) of such Indemnified Party. Counsel shall be selected by RBCCM. In no event shall the Adviser be liable for the fees and expenses of more than one counsel (in addition to any local counsel reasonably required) separate from their own counsel for the Indemnified Parties. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the indemnified party. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The Adviser may participate at its own expense in the defense of any such action; provided, however, that counsel to the Adviser shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Parties. The Adviser shall not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall, without the prior written consent of the Adviser (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder when the Adviser is an actual named party thereto, unless such settlement, compromise or consent (i) includes an unconditional release of the Adviser from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the Adviser. If such indemnification were not to be available for any reason, other than a final judicial determination of RBCCM’s gross negligence or willful misconduct (including bad faith) in performing the services that are the subject of the Agreement, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser or its partners members or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS RBCCM has been retained to perform financial services bears to the fees paid to UBS RBCCM under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS RBCCM (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was not guilty of such fraudulent misrepresentation, or that any losses, claims, damages, liabilities (or expenses related thereto) are determined to have resulted from the gross negligence or willful misconduct (including bad faith) of any Indemnified Party and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence or willful misconduct (including bad faith) of the Adviser. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the RBCCM’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement Indemnification Agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of matters contemplated by the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS RBCCM or any of its affiliates, directors, employees or controlling persons in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund bind, Xxxxxxxxx Income Builder Opportunities Trust (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE MATTERS CONTEMPLATED BY THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE INDEMNIFIED PARTIES AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE INDEMNIFIED PARTIES AND THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS INDEMNIFIED PARTIES AND THE ADVISER, AS THE CASE MAY BE, ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENTJUDGMENT OR OTHER AVAILABLE JUDICIAL PROCESS. Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET XXXXXXXXX INVESTMENT MANAGEMENT, L.P. INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Thornburg Income Builder Opportunities Trust)
Applicability to the Fund. Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: [Signature page to Qualifying Underwriter Structuring Fee Agreement] Agreed and Accepted: [ ] By: Name: Title: [Signature page to Qualifying Underwriter Structuring Fee Agreement] Schedule I Qualifying Underwriter Fee Percentage of the total price to the public of the shares sold by the Fund in the Offering Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 2020 Ladies and Gentlemen: In connection with Reference is made to the engagement of UBS Securities LLC Structuring Fee Agreement (the “UBSAgreement”) to advise and assist ), dated [ ], 2020, between the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) and each Qualifying Underwriter listed on Schedule I thereto (each a “Qualifying Underwriter”). In connection with the engagement of each Qualifying Underwriter to advise and assist the Company with the matters set forth in the Structuring Fee Agreement, dated September [•], 2014, between the Adviser and UBS (the “Agreement”), in the event that UBS a Qualifying Underwriter becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS the Qualifying Underwriter harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or Agreement, arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBSthe Qualifying Underwriter. In addition, in the event that UBS a Qualifying Underwriter becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS the Qualifying Underwriter for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS the Qualifying Underwriter in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBSthe Qualifying Underwriter, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS the Qualifying Underwriter has been retained to perform financial services bears to the fees paid to UBS the Qualifying Underwriter under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS the Qualifying Underwriter is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Qualifying Underwriter pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Qualifying Underwriter, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS the Qualifying Underwriter is an actual or potential party to such Proceeding, without UBS’ the Qualifying Underwriter’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS the Qualifying Underwriter shall include UBS Securities LLCthe Qualifying Underwriter, any of its affiliates, each other person, if any, controlling UBS the Qualifying Underwriter or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS a Qualifying Underwriter nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ the Qualifying Underwriter’s engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Qualifying Underwriter in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE QUALIFYING UNDERWRITERS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE QUALIFYING UNDERWRITER OR ANY INDEMNIFIED PARTY. EACH OF UBS THE QUALIFYING UNDERWRITERS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBSthe Qualifying Underwriters’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS the Qualifying Underwriters and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBSthe Qualifying Underwriters’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: [Signature Page to Qualifying Underwriter Indemnification Agreement] Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: [ ] By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Aberdeen Standard Global Infrastructure Income Fund)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTVery truly yours, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed Accepted and Acceptedagreed to as of the date first above written: UBS SECURITIES XXXXXX XXXXXXX & CO. LLC By: Name: Title: By: Name: Title: [Signature page Page to Structuring Fee Agreement] Indemnification Agreement September FORM OF INDEMNIFICATION AGREEMENT February [•], 2014 UBS Securities 2020 Xxxxxx Xxxxxxx & Co. LLC 000 Xxxx Xxxxxx 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities Xxxxxx Xxxxxxx & Co. LLC (“UBSXxxxxx Xxxxxxx”) to advise and assist the undersigned (including any successor or assign by merger or otherwisetogether with its affiliates and subsidiaries, referred to as the “Adviser”) with the matters set forth in the Structuring Fee Agreement, Agreement dated September February [•], 2014, 2020 between the Adviser and UBS Xxxxxx Xxxxxxx (the “Fee Agreement”), in the event that UBS Xxxxxx Xxxxxxx becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) with respect to the services performed in connection with any matter relating to or referred to in the Agreement with, or arising out of of, or based upon the matters contemplated by the Fee Agreement, including, without limitation, related services and activities provided prior to the date of the Fee Agreement, the Adviser agrees has agreed to indemnify, defend indemnify and hold UBS harmless to the fullest extent permitted by lawXxxxxx Xxxxxxx and Xxxxxx Xxxxxxx’x affiliates and their respective officers, directors, employees and agents and each other person, if any, controlling Xxxxxx Xxxxxxx or any of Xxxxxx Xxxxxxx’x affiliates (Xxxxxx Xxxxxxx and each such other person being an “Indemnified Person”) from and against any losses, claims, damagesdamages or liabilities related to, liabilities and expenses arising out of or in connection with the activities (the “Activities”) performed by any matter relating to or referred to Indemnified Person in the Agreement connection with, or arising out of of, or based upon, the matters contemplated Fee Agreement and/or any action taken by the Agreement, any Indemnified Person in connection therewith (including, without limitation, related services any presentation given by the Adviser and activities provided prior an Indemnified Person relating to the date shares of common shares of beneficial interest, par value $0.00001 per share (the Agreement“Shares”) of DoubleLine Yield Opportunities Fund (the “Fund”)), except to and will reimburse each Indemnified Person for all expenses (including fees and expenses of counsel) as they are reasonably incurred in connection with investigating, preparing, pursuing or defending any Proceeding related to, arising out of or in connection with the extent that it shall Activities, whether or not pending or threatened and whether or not any Indemnified Person is a party. The Adviser will not, however, be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such responsible for any losses, claims, damagesdamages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith, willful misconduct or gross negligence of any Indemnified Person. The Adviser also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Adviser related to, arising out of or in connection with the Activities, except for any such liability for losses, claims, damages or liabilities incurred by the Adviser that are finally judicially determined to have resulted from the bad faith, willful misconduct or gross negligence of such Indemnified Person. Notwithstanding the foregoing, in no event shall the Adviser be responsible for any losses, claims, damages or liabilities to any Indemnified Person arising from any such Proceeding in excess of the gross proceeds received by the Fund from the initial public offering of the Shares of the Fund (the “Offering”); provided, however, that the Adviser shall, as set forth above, indemnify and be responsible for, regardless of the gross proceeds received by the Fund from the Offering, all expenses (including fees and expenses resulted primarily from of counsel) incurred in connection with investigating, preparing, pursuing or defending any Proceeding related to, arising out of or in connection with the gross negligence Activities, whether or willful misconduct not pending or threatened and whether or not any Indemnified Person is a party, as set forth above. The Adviser will not, without Xxxxxx Xxxxxxx’x prior written consent (including bad faith) which consent shall not be unreasonably withheld), settle, compromise, consent to the entry of UBS. In addition, any judgment in the event that UBS becomes involved in any capacity in or otherwise seek to terminate any Proceeding in connection with respect of which indemnification may be sought hereunder (whether or not any matter relating to Indemnified Person is a party thereto) unless such settlement, compromise, consent or referred to in the Agreement or termination includes a release of each Indemnified Person from any liabilities arising out of such Proceeding. No Indemnified Person seeking indemnification, reimbursement or contribution under this agreement (the matters contemplated by “Indemnification Agreement”) will, without the AgreementAdviser’s prior written consent, settle, compromise, consent to the Adviser will reimburse UBS for its legal and other expenses (including the cost entry of any investigation and preparation) as such expenses are reasonably incurred by UBS judgment in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of or otherwise seek to terminate any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser (including the net proceeds from the Shares sold by Xxxxxx Xxxxxxx in the Offering before deducting expenses) and its partners equity holders and affiliates and other constituenciesaffiliates, on the one hand, and UBSXxxxxx Xxxxxxx, on the other hand, in connection with the matters contemplated by the Fee Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners equity holders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners equity holders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser or its partners equity holders or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS Xxxxxx Xxxxxxx has been retained to perform financial services bears to the fees paid to UBS Xxxxxx Xxxxxxx under the Fee Agreement; provided that, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS Xxxxxx Xxxxxxx is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS Xxxxxx Xxxxxxx pursuant to the Fee Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)Xxxxxx Xxxxxxx, on the other hand. The Adviser will not settle any Proceeding in respect Notwithstanding the provisions of which indemnity may be sought hereunderthis paragraph, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent Indemnified Person shall not be unreasonably withheld or delayed)entitled to contribution from the Adviser if it is determined that such Indemnified Person was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, unless such settlement, compromise or consent (ias amended) includes an unconditional release of UBS from all liability related to or arising out and the Adviser was not guilty of such Proceeding and (ii) does not impose any actual fraudulent misrepresentation, or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities (or expenses reasonably incurred by the Adviser related thereto) are determined to have resulted primarily from the gross negligence negligence, willful misconduct, or bad faith of any Indemnified Person and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence, willful misconduct or bad faith of the Adviser. This Indemnification Agreement, together with the Fee Agreement, any contemporaneous written agreements and any prior written agreements (including bad faithto the extent not superseded by this agreement) of UBS that relate to the Offering, represents the entire agreement between the Adviser and the Indemnified Persons with respect to the fee paid to Xxxxxx Xxxxxxx under the Fee Agreement. The Adviser acknowledges that in performing connection with the Offering and the services performed pursuant to the Fee Agreement: (i) Xxxxxx Xxxxxxx has acted at arm’s length, is not an agent of, and owes no fiduciary duties to, the Adviser, the Fund or any person affiliated with the Fund or the Adviser, (ii) Xxxxxx Xxxxxxx owes the Adviser only those duties and obligations set forth in this Indemnification Agreement and the Fee Agreement and (iii) Xxxxxx Xxxxxxx may have interests that are the subject differ from those of the Adviser. The Adviser waives to the full extent permitted by applicable law any claims any of the Adviser, the Fund or any person affiliated with the Fund or the Adviser may have against Xxxxxx Xxxxxxx arising from an alleged breach of fiduciary duty in connection with the Offering or the services performed pursuant to the Fee Agreement. The provisions of this Indemnification Agreement shall apply to the Activities and any modification thereof and shall remain in full force and effect regardless of any termination or the completion of Xxxxxx Xxxxxxx’x services under the Fee Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance bind, DoubleLine Yield Opportunities Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIMThis Indemnification Agreement may not be assigned by either party without prior written consent of the other party. No provision of this Indemnification Agreement may be amended or waived except by an instrument in writing signed by the parties hereto. This Indemnification Agreement and any claim, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT counterclaim, dispute or proceeding of any kind or nature whatsoever arising out of or in any way relating to this Indemnification Agreement (“CLAIMClaim”), DIRECTLY OR INDIRECTLYdirectly or indirectly, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORKshall be governed by and construed in accordance with the internal laws of the State of New York. EXCEPT AS SET FORTH BELOWNo Claim may be commenced, NO CLAIM MAY BE COMMENCEDprosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York (and of the appropriate appellate courts therefrom), PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORKwhich courts shall have exclusive jurisdiction over the adjudication of such matters except as provided below. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Claim and irrevocably waives, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERSto the fullest extent permitted by law, AND THE ADVISER AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETOany objection that it may now or hereafter have to the laying of the venue of any such Claim in any such court or that any such Claim brought in any such court has been brought in an inconvenient forum. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTIONProcess in any such Claim may be served on any party anywhere in the world, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTYwhether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party at the address provided in Section 11 of the Fee Agreement shall be deemed effective service of process on such party. EACH OF UBS XXXXXX XXXXXXX AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF XXXXXX XXXXXXX AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON XXXXXX XXXXXXX AND THE ADVISER ADVISER, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE ADVISER IS ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more any number of counterparts, each of which shall be deemed an original, but and all of which which, when taken together, shall constitute one and the same agreement. Delivery of an executed signature page of this Indemnification Agreement by facsimile or other electronic transmission that accurately depicts a manual signature shall be effective as delivery of a manually executed counterpart hereof. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed Accepted and Acceptedagreed to as of the date first above written: UBS SECURITIES XXXXXX XXXXXXX & CO. LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Fee Agreement (DoubleLine Yield Opportunities Fund)
Applicability to the Fund. Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 2019 UBS Securities LLC 000 Xxxx 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•[ ], 20142019, between the Adviser Company and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)UBS, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities 2019 Xxxxx Fargo Securities, LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities Xxxxx Fargo Securities, LLC (the “UBSBank”) to advise and assist the undersigned undersigned, Angel Oak Capital Advisors, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “AdviserCompany”) with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2019 between the Adviser Company and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly Promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser Company in writing of the commencement thereof; but the failure so to notify the Adviser Company (i) will not relieve the Adviser Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser Company from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by the Bank. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Party. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Bank, on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Company if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Company was not guilty of such fraudulent misrepresentation. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser in connection Company with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. [Signature Page Follows] The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] APPENDIX A Indemnification Agreement September [•[ ], 2014 UBS Securities 2019 RBC Capital Markets, LLC Three World Financial Center, 8th Floor 000 Xxxx Xxxxxx Xxx XxxxXxxxx Xxxxxx, Xxx Xxxx 00000 New York, New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (“UBSRBCCM”) to advise and assist the undersigned undersigned, Angel Oak Capital Advisors, LLC (including any successor or assign by merger or otherwisetogether with its affiliates, subsidiaries, successors and assigns, the “AdviserCompany”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2019 between the Adviser Company and UBS RBCCM (the “Agreement”), the Company shall indemnify and hold harmless RBCCM and its affiliates and their respective employees, directors, officers, consultants, agents and persons deemed to be in control of RBCCM or any of its affiliates within the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) meaning of the Securities Act of 1933 (collectively, a the “ProceedingIndemnified Parties” and individually an “Indemnified Party”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law), from and against any claims, losses, expenses, damages and liabilities, joint or several, as they may be incurred, related to or arising in any manner out of any transaction, proposal or any other matter contemplated by the engagement of RBCCM under the Agreement, or otherwise in connection with services provided with respect to a potential transaction whether prior to or subsequent to the date hereof (the “Matters”). The Company also agrees that neither RBCCM nor any other Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company or its affiliates, partners, directors, officers, consultants, agents, employees, controlling persons, creditors or securityholders for any losses, claims, damages, liabilities and or expenses in connection with any matter relating related to or referred to in the Agreement or arising out of the matters contemplated Agreement or any Matters. The Company will promptly reimburse any Indemnified Party for all costs and expenses as reasonably incurred (including but not limited to fees, costs and expenses of counsel(s) and expert(s)) in connection with the investigation of, preparation for or defense of, responding to third-party subpoenas related to, preparing to serve or serving as a witness with respect to, and/or providing evidence in, or otherwise relating to any pending or threatened claim related to or arising in any manner out of the Agreement or any Matters, or any action or proceeding arising therefrom, whether or not any Indemnified Party is, or is threatened to be, a formal party to such pending or threatened litigation or other proceeding. Without the prior written consent of RBCCM, (A) neither the Company nor any member of the Company’s Board of Directors shall settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened litigation or other proceeding relating to the Agreement or any Matters (whether or not any Indemnified Party is, or is threatened to be, a formal party to such pending or threatened litigation or other proceeding) and (B) the Company shall not participate in or facilitate any such settlement, compromise, consent or termination on behalf of the Company’s Board of Directors unless in each of (A) and (B) such settlement, compromise, consent or termination (i) includes an express, complete and unconditional release of RBCCM and its affiliates (and their respective control persons, partners, directors, officers, employees, consultants and agents) with respect to all claims asserted in such litigation or relating to the Agreement or any Matters (such release to be set forth in an instrument signed by all parties to such settlement, compromise, consent or termination) and (ii) does not include any statement as to, or any admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. Without the Agreementprior written consent of the Company, includingwhich shall not be unreasonably withheld, delayed or conditioned, no Indemnified Party shall settle or compromise any claim for which indemnification or contribution may be sought hereunder. Notwithstanding the foregoing sentence, if at any time an Indemnified Party requests that the Company reimburse the Indemnified Party for fees, costs and expenses as provided in this Appendix A, the Company shall be liable for any settlement of any proceeding effected without limitationits prior written consent if (i) such settlement is entered into more than thirty (30) days after receipt by it of the request for reimbursement, related services and activities provided (ii) it shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of the Agreement, except such settlement. Notwithstanding any provision herein to the extent contrary, the Company shall not be liable hereunder for indemnification to an Indemnified Party, and the Indemnified Party shall not be exculpated, in respect of any claims, losses, expenses, damages and liabilities that it shall be determined by a court of competent jurisdiction are finally judicially determined, in a judgment that has become final in that it is no longer subject non-appealable judgment, to appeal or other review that such losses, claims, damages, liabilities and expenses have resulted primarily and directly from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In additionThe Company agrees that if any exculpation, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter relating indemnification or reimbursement sought pursuant to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS were for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were reason not to be available for to any reasonIndemnified Party or insufficient to hold any Indemnified Party harmless as and to the extent contemplated hereby, then the Adviser agrees to Company shall contribute to the losses, amount paid or payable by the Indemnified Party as a result of the claims, damages, losses, expenses and liabilities and expenses involved in such proportion as is appropriate (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners and affiliates and other constituencies, securityholders on the one hand, and UBS, RBCCM on the other hand, in connection with the matters contemplated by the Agreement services of RBCCM to which such exculpation, indemnification or reimbursement relates or (ii) if (but only if and to the extent) the allocation provided for in clause (i) on that basis is for any reason held unenforceablenot permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Adviser and its partners and affiliates and other constituencieseach such Indemnified Party, on the one handrespectively, and the party entitled to contribution, on the other hand, Company as well as any other relevant equitable considerations. The Adviser agrees Company and RBCCM agree that it would not be just and equitable if the contribution provided for herein were determined by pro rata allocation or any other method which does not take into account the purposes of this paragraph equitable considerations referred to above. It is hereby agreed that the relative benefits received, or sought to be received, by the Adviser and its partners and affiliates and other constituenciesCompany, on the one hand, and the party entitled to contributionRBCCM, on the other hand, in connection with the matters contemplated by the Agreement respect to this engagement shall be deemed to be in the same proportion that as (i) the total value received gross proceeds raised or paid or contemplated anticipated to be received or paid by the Adviser or its partners or affiliates and other constituencies, as the case may be, as a result of or raised in connection with with, the matters transaction (whether or not consummated) ), as applicable, for which UBS has been retained RBCCM is engaged to perform render financial advisory services bears to (ii) the fees fee paid to UBS under the Agreement; provided that, RBCCM in connection with such engagement. In no event shall the Adviser RBCCM contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the terms of the Agreement. Relative fault The Company agrees that the exculpation, indemnification, reimbursement and contribution obligations of the Company set forth herein shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents), on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, apply whether or not UBS any Indemnified Party is an actual or potential a formal party to such Proceedingany claim, without UBS’ prior written consent (which consent shall not be unreasonably withheld action or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect proceeding relating to the characterAgreement or the Matters. Such obligations of the Company, professionalismas well as the Company’s obligations regarding the settlement of pending or threatened litigation or other proceedings, due care, loyalty, expertise or reputation shall survive the termination of UBS or any action or inaction by UBS. For purposes of this Indemnification the Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party liability which the Company may otherwise have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons and shall have any liability be binding upon and inure to the Adviser or benefit of any person asserting claims on behalf of or in right successors, assigns, heirs and personal representatives of the Adviser Company or an Indemnified Party. Prior to entering into any agreement or arrangement with respect to, or effecting, any transaction that is reasonably likely to impair the Company’s ability to meet its current and potential future obligations pursuant to this Appendix A, the Company shall promptly notify RBCCM in connection with or as a result writing thereof and, if requested by RBCCM, shall arrange alternative means of either UBS’ engagement under providing for the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date obligations of the Agreement, except Company set forth herein upon terms and conditions satisfactory to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated herebyRBCCM. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE ADVISER INDEMNIFIED PARTIES AND THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER INDEMNIFIED PARTY OR THE COMPANY, RESPECTIVELY, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER SUCH PARTY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. Capitalized terms used in this Appendix A and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTVery truly yours, L.P. ANGEL OAK CAPITAL ADVISORS, LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC XXXXX, XXXXXXXX & XXXXX, INC. By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 2020 Xxxxx, Xxxxxxxx & Xxxxx, Inc. 000 Xxxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the “UBSBank”) to advise and assist the undersigned undersigned, Angel Oak Capital Advisors, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2020 between the Adviser and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses of counsel to the Indemnified Parties with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement. The Adviser will not, includinghowever, without limitationbe responsible for any claims, related services and activities provided prior to the date of the Agreementliabilities, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and damages or expenses which are finally judicially determined to have resulted primarily from the Bank’s willful misconduct, bad faith or gross negligence or willful misconduct (including bad faith) of UBS. negligence.. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS or cause to be reimbursed such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The indemnifying party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and shall pay or cause to be paid the incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of such counsel has been authorized in writing by the indemnifying party, (ii) the Indemnified Party has reasonably concluded (based upon advice of counsel to the Indemnified Party) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the indemnifying party, or that a conflict or potential conflict exists (based upon advice of counsel to the Indemnified Party) between the Indemnified Party and the indemnifying party that makes it impossible or inadvisable for counsel to the indemnifying party to conduct the defense of both the indemnifying party and the Indemnified Party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the Indemnified Party), or (iii) the indemnifying party has not in fact employed counsel reasonably satisfactory to the Indemnified Party to assume the defense of such action within a reasonable time after receiving notice of the action, suit or proceeding, in each of which cases the reasonable fees, disbursements and other charges of such counsel will be at the expense of the indemnifying party; provided, that in no event shall the indemnifying party be required to pay fees and expenses for more than one firm of attorneys (in addition to any local counsel) representing Indemnified Parties unless (based on the advice of counsel to the Indemnified Party) the defense of one Indemnified Party is unique or separate from that of another Indemnified Party subject to the same claim or action.. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and Adviser, its partners owners and affiliates and other constituenciesAngel Oak Dynamic Financial Strategies Income Term Trust (the “Fund”), on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and Adviser, its partners owners and affiliates and other constituenciesthe Fund, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and Adviser, its partners owners and affiliates and other constituenciesthe Fund, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Adviser, its owners and affiliates or its partners or affiliates and other constituenciesthe Fund, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Bank, on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing personsconsent. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser or the Fund resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER ADVISER, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. This Agreement together with the Structuring Fee Agreement constitutes the final and entire agreement and understanding between the parties to this Agreement relative to the subject matter of this Agreement and supersedes all prior agreements and understandings (whether written or oral) between such parties concerning the subject matter of this Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:.
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET RIVERNORTH CAPITAL MANAGEMENT, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•●], 2014 UBS Securities 2020 RBC Capital Markets, LLC 000 Xxxx Xxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (( “UBSRBCCM”) to advise and assist the undersigned undersigned, RiverNorth Capital Management, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•●], 2014, 2020 between the Adviser and UBS RBCCM (the “Agreement”), in the event that UBS RBCCM, any of its affiliates, each other person, if any, controlling RBCCM or any of its affiliates, their respective officers, current or former directors, employees and agents, or the successors or assigns of any of the foregoing persons (RBCCM and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed under the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed under the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding in connection with any matter relating respect to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and expenses resulted primarily and directly from the gross negligence or willful misconduct of such Indemnified Party. Counsel shall be selected by RBCCM. In no event shall the Adviser be liable for the fees and expenses of more than one counsel (in addition to any local counsel reasonably required) separate from their own counsel for the Indemnified Parties. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the indemnified party. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The Adviser may participate at its own expense in the defense of any such action; provided, however, that counsel to the Adviser shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Parties. The Adviser shall not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall, without the prior written consent of the Adviser (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder when the Adviser is an actual named party thereto, unless such settlement, compromise or consent (i) includes an unconditional release of the Adviser from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the Adviser. If such indemnification were not to be available for any reason, other than a final judicial determination of RBCCM’s gross negligence, bad faith, or willful misconduct in performing the services that are the subject of the Agreement, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser or its partners members or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS RBCCM has been retained to perform financial services bears to the fees paid to UBS RBCCM under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS RBCCM (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was not guilty of such fraudulent misrepresentation, or that any losses, claims, damages, liabilities (or expenses related thereto) are determined to have resulted from the gross negligence, willful misconduct or bad faith of any Indemnified Party and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence, willful misconduct or bad faith of the Adviser. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the RBCCM’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement Indemnification Agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of matters contemplated by the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS RBCCM or any of its affiliates, directors, employees or controlling persons in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund bind, RiverNorth Flexible Municipal Income Fund, Inc. (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE MATTERS CONTEMPLATED BY THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE INDEMNIFIED PARTIES AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE INDEMNIFIED PARTIES AND THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS INDEMNIFIED PARTIES AND THE ADVISER, AS THE CASE MAY BE, ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENTJUDGMENT OR OTHER AVAILABLE JUDICIAL PROCESS. Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET RIVERNORTH CAPITAL MANAGEMENT, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (RiverNorth Flexible Municipal Income Fund, Inc.)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTVery truly yours, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By: Name: Title: [Signature page Page to Stifel Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx 2020 Xxxxxx, Xxxxxxxx & Company, Incorporated Xxx XxxxXxxxx Xxxxxx, Xxx Xxxx 00xx Xxxxx Xxxxxxxxx, XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxxx, Xxxxxxxx & Company, Incorporated (the “UBSBank”) to advise and assist the undersigned undersigned, Aberdeen Standard Investments Inc., together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2020 between the Adviser and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses of counsel to the Indemnified Parties with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement. The Adviser will not, includinghowever, without limitationbe responsible for any claims, related services and activities provided prior to the date of the Agreementliabilities, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and damages or expenses which are finally judicially determined to have resulted primarily from the Bank’s willful misconduct, bad faith or gross negligence or willful misconduct (including bad faith) of UBS. negligence.. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS or cause to be reimbursed such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The indemnifying party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and shall pay or cause to be paid the incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of such counsel has been authorized in writing by the indemnifying party, (ii) the Indemnified Party has reasonably concluded (based upon advice of counsel to the Indemnified Party) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the indemnifying party, or that a conflict or potential conflict exists (based upon advice of counsel to the Indemnified Party) between the Indemnified Party and the indemnifying party that makes it impossible or inadvisable for counsel to the indemnifying party to conduct the defense of both the indemnifying party and the Indemnified Party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the Indemnified Party), or (iii) the indemnifying party has not in fact employed counsel reasonably satisfactory to the Indemnified Party to assume the defense of such action within a reasonable time after receiving notice of the action, suit or proceeding, in each of which cases the reasonable fees, disbursements and other charges of such counsel will be at the expense of the indemnifying party; provided, that in no event shall the indemnifying party be required to pay fees and expenses for more than one firm of attorneys (in addition to any local counsel) representing Indemnified Parties unless (based on the advice of counsel to the Indemnified Party) the defense of one Indemnified Party is unique or separate from that of another Indemnified Party subject to the same claim or action.. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and Adviser, its partners owners and affiliates and other constituenciesAngel Oak Dynamic Financial Strategies Income Term Trust (the “Fund”), on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and Adviser, its partners owners and affiliates and other constituenciesthe Fund, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and Adviser, its partners owners and affiliates and other constituenciesthe Fund, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Adviser, its owners and affiliates or its partners or affiliates and other constituenciesthe Fund, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Bank, on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing personsconsent. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser or the Fund resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER ADVISER, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. This Agreement together with the Structuring Fee Agreement constitutes the final and entire agreement and understanding between the parties to this Agreement relative to the subject matter of this Agreement and supersedes all prior agreements and understandings (whether written or oral) between such parties concerning the subject matter of this Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:.
Appears in 1 contract
Samples: Structuring Fee Agreement (Aberdeen Standard Global Infrastructure Income Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXXXXXXX & CO. INC. By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx 2020 Xxxxxxxxxxx & Co. Inc. 00 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxxxxxxxx & Co. Inc. (“UBSOppenheimer”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•[ ], 20142020, between the Adviser Company and UBS Oppenheimer (the “Agreement”), in the event that UBS Oppenheimer becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS Oppenheimer harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBSOppenheimer. In addition, in the event that UBS Oppenheimer becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS Oppenheimer for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS Oppenheimer in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBSOppenheimer, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS Oppenheimer has been retained to perform financial services bears to the fees paid to UBS Oppenheimer under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS Oppenheimer is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS Oppenheimer pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)Oppenheimer, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS Oppenheimer is an actual or potential party to such Proceeding, without UBS’ Xxxxxxxxxxx’x prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS Oppenheimer shall include UBS Securities LLCXxxxxxxxxxx & Co, Inc., any of its affiliates, each other person, if any, controlling UBS Oppenheimer or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS Oppenheimer nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ Xxxxxxxxxxx’x engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS Oppenheimer in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS OPPENHEIMER CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OPPENHEIMER OR ANY INDEMNIFIED PARTY. EACH OF UBS OPPENHEIMER AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the AgreementXxxxxxxxxxx’x engagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS Oppenheimer and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ Xxxxxxxxxxx’x respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXXXXXXX & CO. INC. By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Aberdeen Standard Global Infrastructure Income Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXXXXXXX & CO. INC. By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx 2020 Xxxxxxxxxxx & Co. Inc. 00 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxxxxxxxx & Co. Inc. (“UBSOppenheimer”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•[ ], 20142020, between the Adviser Company and UBS Oppenheimer (the “Agreement”), in the event that UBS Oppenheimer becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS Oppenheimer harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBSOppenheimer. In addition, in the event that UBS Oppenheimer becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS Oppenheimer for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS Oppenheimer in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBSOppenheimer, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS Oppenheimer has been retained to perform financial services bears to the fees paid to UBS Oppenheimer under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS Oppenheimer is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS Oppenheimer pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)Oppenheimer, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS Oppenheimer is an actual or potential party to such Proceeding, without UBS’ Xxxxxxxxxxx’x prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS Oppenheimer shall include UBS Securities LLCXxxxxxxxxxx & Co, Inc., any of its affiliates, each other person, if any, controlling UBS Oppenheimer or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS Oppenheimer nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ Xxxxxxxxxxx’x engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS Oppenheimer in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS OPPENHEIMER CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OPPENHEIMER OR ANY INDEMNIFIED PARTY. EACH OF UBS OPPENHEIMER AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the AgreementXxxxxxxxxxx’x engagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS Oppenheimer and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ Xxxxxxxxxxx’x respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: XXXXXXXXXXX & CO. INC. By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 2020 UBS Securities LLC 000 Xxxx 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) with the matters set forth in the Structuring Fee Agreement, dated September [•[ ], 20142020, between the Adviser Company and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)UBS, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. ABERDEEN STANDARD INVESTMENTS INC. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Aberdeen Standard Global Infrastructure Income Fund)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET RIVERNORTH CAPITAL MANAGEMENT, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•●], 2014 UBS Securities 2022 RBC Capital Markets, LLC 000 Xxxx Xxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10281-8098 Ladies and Gentlemen: In connection with the engagement of UBS Securities RBC Capital Markets, LLC (( “UBSRBCCM”) to advise and assist the undersigned undersigned, RiverNorth Capital Management, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September [•●], 2014, 2022 between the Adviser and UBS RBCCM (the “Agreement”), in the event that UBS RBCCM, any of its affiliates, each other person, if any, controlling RBCCM or any of its affiliates, their respective officers, current or former directors, employees and agents, or the successors or assigns of any of the foregoing persons (RBCCM and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed under the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed under the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding in connection with any matter relating respect to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review, that such losses, claims, damages, liabilities and expenses resulted primarily and directly from the gross negligence or willful misconduct of such Indemnified Party. Counsel shall be selected by RBCCM. In no event shall the Adviser be liable for the fees and expenses of more than one counsel (in addition to any local counsel reasonably required) separate from their own counsel for the Indemnified Parties. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the indemnified party. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The Adviser may participate at its own expense in the defense of any such action; provided, however, that counsel to the Adviser shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Parties. The Adviser shall not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall, without the prior written consent of the Adviser (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder when the Adviser is an actual named party thereto, unless such settlement, compromise or consent (i) includes an unconditional release of the Adviser from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the Adviser. If such indemnification were not to be available for any reason, other than a final judicial determination of RBCCM’s gross negligence, bad faith, or willful misconduct in performing the services that are the subject of the Agreement, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners members and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received by or paid to or contemplated to be received by or paid by to the Adviser or its partners members or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS RBCCM has been retained to perform financial services bears to the fees paid to UBS RBCCM under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS RBCCM pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS RBCCM (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Adviser if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Adviser was not guilty of such fraudulent misrepresentation, or that any losses, claims, damages, liabilities (or expenses related thereto) are determined to have resulted from the gross negligence, willful misconduct or bad faith of any Indemnified Party and that any such losses, claims, damages, liabilities (or expenses relating thereto) are determined not to have resulted from any gross negligence, willful misconduct or bad faith of the Adviser. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the RBCCM’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement Indemnification Agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of matters contemplated by the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS RBCCM or any of its affiliates, directors, employees or controlling persons in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Adviser” herein, does not include any registered investment company for which the Adviser or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund bind, RiverNorth Managed Duration Municipal Income Fund, Inc. (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE MATTERS CONTEMPLATED BY THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS RBCCM OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. EACH OF THE INDEMNIFIED PARTIES AND THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE INDEMNIFIED PARTIES AND THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS INDEMNIFIED PARTIES AND THE ADVISER, AS THE CASE MAY BE, ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENTJUDGMENT OR OTHER AVAILABLE JUDICIAL PROCESS. Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ RBCCM’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET RIVERNORTH CAPITAL MANAGEMENT, L.P. LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES RBC CAPITAL MARKETS, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (RiverNorth Managed Duration Municipal Income Fund II, Inc.)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. TEKLA CAPITAL MANAGEMENT LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September July [•·], 2014 UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned (including any successor or assign by merger or otherwise, the “Adviser”) with the matters set forth in the Structuring Fee Agreement, dated September July [•·], 2014, between the Adviser and UBS (the “Agreement”), in the event that UBS becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS. In addition, in the event that UBS becomes involved in any capacity in any Proceeding in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and its partners and affiliates and other constituencies, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and its partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and its partners and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser or its partners or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS has been retained to perform financial services bears to the fees paid to UBS under the Agreement; provided that, in no event shall the Adviser contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents), on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Tekla Healthcare Opportunities Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. TEKLA CAPITAL MANAGEMENT LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Tekla Healthcare Opportunities Fund)
Applicability to the Fund. Nothing in this Agreement is intended to to, or shall be deemed to bind bind, the Fund, and the Fund shall have no obligation or liability under under, or in respect of of, this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title: [Signature page Page to Structuring Fee Agreement] Form of Indemnification Agreement September February [•], 2014 UBS Securities 2020 Xxxxx Fargo Securities, LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities Xxxxx Fargo Securities, LLC (the “UBSBank”) to advise and assist the undersigned undersigned, DoubleLine Capital LP, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “AdviserCompany”) with respect to the matters set forth in the Structuring Fee Agreement, Agreement dated September February [•], 2014, 2020 between the Adviser Company and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, litigation, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior counsel to the date of Indemnified Parties, with respect to the services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review review, that such losses, claims, damages, liabilities and expenses resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBSsuch Indemnified Party. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser Company in writing of the commencement thereof; but the failure so to notify the Adviser Company (i) will not relieve the Adviser Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser Company from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by the Bank. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the Indemnified Party. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners owners and affiliates and other constituenciesaffiliates, on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners owners and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contributionIndemnified Parties, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners owners and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners owners or affiliates and other constituenciesaffiliates, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS the Bank (or its employees or other agents), on the other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be entitled to contribution from the Company if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) and the Company was not guilty of such fraudulent misrepresentation. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayedwithheld), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser Company agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser in connection Company with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing the term “affiliate,” as used in the definition of “Company” herein, does not include any registered investment company for which the Company or any of its affiliates serve as investment adviser. Nothing in this Indemnification Agreement is intended to to, or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance bind, DoubleLine Yield Opportunities Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. DOUBLELINE CAPITAL LP By: Name: Title: Agreed and Accepted: UBS SECURITIES XXXXX FARGO SECURITIES, LLC By: Name: Title: By: Name: Title:
Appears in 1 contract
Samples: Fee Agreement (DoubleLine Yield Opportunities Fund)
Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTVery truly yours, L.P. ANGEL OAK CAPITAL ADVISORS, LLC By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC XXXXX, XXXXXXXX & XXXXX, INC. By: Name: Title: By: Name: Title: [Signature page to Structuring Fee Agreement] Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 2019 Xxxxx, Xxxxxxxx & Xxxxx, Inc. 000 Xxxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Ladies and Gentlemen: In connection with the engagement of UBS Securities LLC Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the “UBSBank”) to advise and assist the undersigned undersigned, Angel Oak Capital Advisors, LLC, together with its affiliates and subsidiaries (including any successor or assign by merger or otherwise, the “Adviser”) ), with the matters set forth in the Structuring Fee Agreement, Agreement dated September [•[ ], 2014, 2019 between the Adviser and UBS the Bank (the “Agreement”), in the event that UBS the Bank, any of its affiliates, each other person, if any, controlling the Bank or any of its affiliates, their respective officers, current and former directors, employees and agents, or the successors or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, the Adviser agrees to indemnify, defend and hold UBS each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the fees and expenses of counsel to the Indemnified Parties with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement. The Adviser will not, includinghowever, without limitationbe responsible for any claims, related services and activities provided prior to the date of the Agreementliabilities, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and damages or expenses which are finally judicially determined to have resulted primarily from the Bank’s willful misconduct, bad faith or gross negligence or willful misconduct (including bad faith) of UBS. negligence.. In addition, in the event that UBS an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the services performed pursuant to and in connection accordance with any matter relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser will reimburse UBS or cause to be reimbursed such Indemnified Party for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS such Indemnified Party in connection therewith. As promptly as reasonably practicable after receipt by UBS an Indemnified Party of notice of the commencement of any Proceeding, UBS such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. The indemnifying party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and shall pay or cause to be paid the incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of such counsel has been authorized in writing by the indemnifying party, (ii) the Indemnified Party has reasonably concluded (based upon advice of counsel to the Indemnified Party) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the indemnifying party, or that a conflict or potential conflict exists (based upon advice of counsel to the Indemnified Party) between the Indemnified Party and the indemnifying party that makes it impossible or inadvisable for counsel to the indemnifying party to conduct the defense of both the indemnifying party and the Indemnified Party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the Indemnified Party), or (iii) the indemnifying party has not in fact employed counsel reasonably satisfactory to the Indemnified Party to assume the defense of such action within a reasonable time after receiving notice of the action, suit or proceeding, in each of which cases the reasonable fees, disbursements and other charges of such counsel will be at the expense of the indemnifying party; provided, that in no event shall the indemnifying party be required to pay fees and expenses for more than one firm of attorneys (in addition to any local counsel) representing Indemnified Parties unless (based on the advice of counsel to the Indemnified Party) the defense of one Indemnified Party is unique or separate from that of another Indemnified Party subject to the same claim or action.. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Proceeding, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such Proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. If such indemnification were not to be available for any reason, the Adviser agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser and Adviser, its partners owners and affiliates and other constituenciesAngel Oak Financial Strategies Income Term Trust (the “Fund”), on the one hand, and UBSthe Indemnified Parties, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser and Adviser, its partners owners and affiliates and other constituenciesthe Fund, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser and Adviser, its partners owners and affiliates and other constituenciesthe Fund, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters of a transaction as contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Adviser, its owners and affiliates or its partners or affiliates and other constituenciesthe Fund, as the case may be, as a result of or in connection with the matters transaction (whether or not consummated) for which UBS the Bank has been retained to perform financial services bears to the fees paid to UBS the Bank under the Agreement; provided thatprovided, that in no event shall the Adviser contribute less than the amount necessary to assure that UBS is the Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Bank pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser or other conduct by the Adviser (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Bank, on the other hand. The Adviser will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS an Indemnified Party is an actual or potential party to such Proceeding, without UBS’ the Bank’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing personsconsent. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party Indemnified Party may have at common law or otherwise. The Adviser agrees that neither UBS nor any of its affiliates, directors, agents, employees or controlling persons no Indemnified Party shall have any liability to the Adviser or any person asserting claims on behalf of or in right of the Adviser in connection with or as a result of either UBS’ engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior respect to the date of services performed pursuant to and in accordance with the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser or the Fund resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Bank in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING WITH RESPECT TO THIS THE SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER AND UBS THE INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE BANK OR ANY INDEMNIFIED PARTY. EACH OF UBS INDEMNIFIED PARTY AND THE ADVISER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER ADVISER, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. This Agreement together with the Structuring Fee Agreement constitutes the final and entire agreement and understanding between the parties to this Agreement relative to the subject matter of this Agreement and supersedes all prior agreements and understandings (whether written or oral) between such parties concerning the subject matter of this Agreement. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBS’ the Bank’s engagement under the Agreement. This Indemnification Agreement shall be binding upon the Adviser and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Adviser’s or UBS’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENT, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title:.
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Financial Strategies Income Term Trust)
Applicability to the Fund. Applicability to the Fund. Nothing in this Agreement is intended to or shall be deemed to bind the Fund, and the Fund shall have no obligation or liability under or in respect of this Agreement or the transaction contemplated hereby. [Signature Page Follows] This Agreement shall be effective as of the date first written above. XXXXXXX XXXXX ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: By: Name: Title: [Signature page to Qualifying Underwriter Structuring Fee Agreement] Agreed and Accepted: [ ] BY: Name: Title: [Signature page to Qualifying Underwriter Structuring Fee Agreement] Schedule I Qualifying Underwriter Fee Percentage of the total price to the public of the shares sold by the Fund in the Offering [ ] $[ ] [ ]% [ ] $[ ] [ ]% [ ] $[ ] [ ]% Indemnification Agreement September [•[ ], 2014 UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 2019 Ladies and Gentlemen: In connection with Reference is made to the engagement of UBS Securities LLC Structuring Fee Agreement (the “UBSAgreement”) to advise and assist ), dated [ ], 2019, between the undersigned (including any successor or assign by merger or otherwise, the “AdviserCompany”) and each Qualifying Underwriter listed on Schedule I thereto (each a “Qualifying Underwriter”). In connection with the engagement of each Qualifying Underwriter to advise and assist the Company with the matters set forth in the Structuring Fee Agreement, dated September [•], 2014, between the Adviser and UBS (the “Agreement”), in the event that UBS a Qualifying Underwriter becomes involved in any capacity in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a “Proceeding”) in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Adviser Company agrees to indemnify, defend and hold UBS the Qualifying Underwriter harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any matter in any way relating to or referred to in the Agreement or Agreement, arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that such losses, claims, damages, liabilities and expenses resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBSthe Qualifying Underwriter. In addition, in the event that UBS a Qualifying Underwriter becomes involved in any capacity in any Proceeding in connection with any matter in any way relating to or referred to in the Agreement or arising out of the matters contemplated by the Agreement, the Adviser Company will reimburse UBS the Qualifying Underwriter for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are reasonably incurred by UBS the Qualifying Underwriter in connection therewith. As promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding, UBS will, if a claim in respect thereof is to be made under this paragraph, notify the Adviser in writing of the commencement thereof; but the failure so to notify the Adviser (i) will not relieve the Adviser from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Adviser from any liability which it may have otherwise than on account of this Indemnification Agreement. If such indemnification were not to be available for any reason, the Adviser Company agrees to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and UBSthe Qualifying Underwriter, on the other hand, in connection with the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Adviser Company and its partners stockholders and affiliates and other constituenciesaffiliates, on the one hand, and the party entitled to contribution, on the other hand, as well as any other relevant equitable considerations. The Adviser Company agrees that for the purposes of this paragraph the relative benefits received, or sought to be received, by the Adviser Company and its partners stockholders and affiliates and other constituencies, on the one hand, and the party entitled to contribution, on the other hand, in connection with the matters contemplated by the Agreement shall be deemed to be in the same proportion that the total value received or paid or contemplated to be received or paid by the Adviser Company or its partners stockholders or affiliates and other constituencies, as the case may be, as a result of or in connection with the matters (whether or not consummated) for which UBS the Qualifying Underwriter has been retained to perform financial services bears to the fees paid to UBS the Qualifying Underwriter under the Agreement; provided that, in no event shall the Adviser Company contribute less than the amount necessary to assure that UBS the Qualifying Underwriter is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by UBS the Qualifying Underwriter pursuant to the Agreement. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any other alleged conduct relates to information provided by the Adviser Company or other conduct by the Adviser Company (or its employees or other agents), on the one hand, or by UBS (or its employees or other agents)the Qualifying Underwriter, on the other hand. The Adviser Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS the Qualifying Underwriter is an actual or potential party to such Proceeding, without UBS’ the Qualifying Underwriter’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless such settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBSconsent. For purposes of this Indemnification Agreement, UBS the Qualifying Underwriter shall include UBS Securities LLCthe Qualifying Underwriter, any of its affiliates, each other person, if any, controlling UBS the Qualifying Underwriter or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. The Adviser Company agrees that neither UBS a Qualifying Underwriter nor any of its affiliates, directors, agents, employees or controlling persons shall have any liability to the Adviser Company or any person asserting claims on behalf of or in right of the Adviser Company in connection with or as a result of either UBS’ the Qualifying Underwriter’s engagement under the Agreement or any matter referred to in the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other review that any losses, claims, damages, liabilities or expenses reasonably incurred by the Adviser Company resulted primarily solely from the gross negligence or willful misconduct (including bad faith) of UBS the Qualifying Underwriter in performing the services that are the subject of the Agreement. For clarification, the parties to this Indemnification Agreement agree that nothing in this Indemnification Agreement is intended to or shall be deemed to bind Xxxxxxx Xxxxx MLP and Energy Renaissance Fund (the “Fund”), and the Fund shall have no obligation or liability under or in respect of this Indemnification Agreement or the transaction contemplated hereby. THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT (“CLAIM”), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE ADVISER COMPANY AND UBS THE QUALIFYING UNDERWRITERS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE ADVISER COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST UBS THE QUALIFYING UNDERWRITER OR ANY INDEMNIFIED PARTY. EACH OF UBS THE QUALIFYING UNDERWRITERS AND THE ADVISER COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT. THE ADVISER COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS INDEMNIFICATION AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE ADVISER COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE ADVISER COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of UBSthe Qualifying Underwriters’ engagement under the Agreementengagement. This Indemnification Agreement shall be binding upon the Adviser Company and UBS the Qualifying Underwriters and their respective successors and assigns and any successor or assign of any substantial portion of the AdviserCompany’s or UBSthe Qualifying Underwriters’ respective businesses and/or assets. This Indemnification Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. [Signature Page Follows] Very truly yours, XXXXXXX SACHS ASSET MANAGEMENTANGEL OAK CAPITAL ADVISORS, L.P. By: Name: Title: Agreed and Accepted: UBS SECURITIES LLC By: Name: Title: [Signature Page to Qualifying Underwriter Indemnification Agreement] Agreed and Accepted: [ ] By: Name: Title:
Appears in 1 contract
Samples: Structuring Fee Agreement (Angel Oak Financial Strategies Income Term Trust)
