Liability and Indemnification A. Except as may otherwise be provided by the Investment Company Act or any other federal securities law (whose provisions may not be waived or altered by contract), the Sub-Adviser shall not be liable for any losses, claims, damages, liabilities or litigation (including reasonable attorneys fees) incurred or suffered by the Portfolio(s), the Trust or the Adviser as a result of any error of judgment, mistake of law, or other action or omission by the Sub-Adviser; provided, however, that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Sub-Adviser for, and the Sub-Adviser shall indemnify and hold harmless the Adviser and the Trust, all affiliated persons thereof (as defined in Section 2(a)(3) of the Investment Company Act) and all controlling persons thereof (as described in Section 15 of the Securities Act) (collectively, “Adviser Indemnitees”) against, any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the Securities Act, the Investment Company Act, the Advisers Act or any other statute, or at common law or otherwise, arising out of or based on (i) any willful misconduct, bad faith, reckless disregard or gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Prospectus, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Portfolio(s), the Trust or the Adviser, or the omission to state therein a material fact known to the Sub-Adviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein. B. Except as may otherwise be provided by the Investment Company Act or any other federal securities law (whose provisions may not be waived or altered by contract), the Adviser shall not be liable for any losses, claims, damages, liabilities or litigation (including reasonable attorneys fees) incurred or suffered by the Sub-Adviser as a result of any error of judgment, mistake of law, or other action or omission by the Adviser; provided, however, that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser for, and the Adviser shall indemnify and hold harmless the Sub-Adviser, all affiliated persons thereof (as defined in Section 2(a)(3) of the Investment Company Act) and all controlling persons thereof (as described in Section 15 of the Securities Act) (collectively, “Sub-Adviser Indemnitees”) against, any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject under the Securities Act, the Investment Company Act, the Advisers Act or any other statute, or at common law or otherwise, arising out of or based on (i) any willful misconduct, bad faith, reckless disregard or gross negligence of the Adviser in the performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Prospectus, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Portfolio(s), the Trust or the Adviser, or the omission to state therein a material fact known to the Adviser that was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser Indemnitees.
Insurance and Indemnification (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations. (b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller. (c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX). (d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Primacy of Indemnification The Company hereby acknowledges that the Indemnitee may have certain rights to indemnification, advancement of expenses or liability insurance provided by a third-party investor and certain of its affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees that (i) it is the indemnitor of first resort, i.e., its obligations to the Indemnitee under this Agreement and any indemnity provisions set forth in its Certificate of Incorporation, Bylaws or elsewhere (collectively, “Indemnity Arrangements”) are primary, and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the Indemnitee is secondary and excess, (ii) it shall advance the full amount of expenses incurred by the Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement by or on behalf of the Indemnitee, to the extent legally permitted and as required by any Indemnity Arrangement, without regard to any rights the Indemnitee may have against the Fund Indemnitors, and (iii) it irrevocably waives, relinquishes and releases the Fund Indemnitors from any claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind arising out of or relating to any Indemnity Arrangement. The Company further agrees that no advancement or indemnification payment by any Fund Indemnitor on behalf of the Indemnitee shall affect the foregoing, and the Fund Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Indemnitee against the Company. The Company and the Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section 14. The Company, on its own behalf and on behalf of its insurers to the extent allowed by the policies, waives subrogation rights against Indemnitee.
Limitation of Liability and Indemnification State Street shall be held to a standard of reasonable care in carrying out its duties under this Agreement. State Street shall be responsible for the performance of only such duties as are set forth in this Agreement and, except as otherwise provided under Section XVI, shall have no responsibility for the actions or activities of any other party, including other service providers. State Street shall have no liability for any error of judgment or mistake of law or for any loss or damage resulting from the performance or nonperformance of its duties hereunder unless caused by or resulting from the negligence, reckless misconduct, willful malfeasance or lack of good faith of State Street, its officers or employees and, in such event, such liability will be subject to the limitations set forth in Section XIII herein. STATE STREET SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO THE TRUST’S USE OF THE SERVICES DESCRIBED HEREIN OR THE PERFORMANCE OF OR FAILURE TO PERFORM STATE STREET’S OBLIGATIONS UNDER THIS AGREEMENT. This disclaimer applies without limitation to claims regardless of the form of action, whether in contract (including negligence), strict liability, or otherwise and regardless of whether such damages are foreseeable. The Trust, or, if applicable, the relevant Portfolio, will indemnify and hold harmless State Street and its stockholders, directors, officers, employees, agents, and representatives (collectively, the “Trust Indemnified Persons”) for, and will pay to the Trust Indemnified Persons the amount of, any actual and direct damages, whether or not involving a third-party claim (collectively, the “Damages”), arising from or in connection with (i) any act or omission by State Street (or any of its affiliates) pursuant to this Agreement which does not constitute negligence, reckless misconduct, willful malfeasance or lack of good faith in fulfilling the terms and obligations of this Agreement, (ii) any act or omission by the Trust (or any of its affiliates) which constitutes a breach of any representation, warranty, term, or obligation contained in this Agreement, or (iii) any act or omission by the Trust (or any of its affiliates) which constitutes negligence, reckless misconduct, willful malfeasance, or lack of good faith in fulfilling the terms and obligations of this Agreement. The remedies provided in this paragraph are not exclusive of or limit any other remedies that may be available to State Street or any other Trust Indemnified Person. State Street will indemnify and hold harmless the Trust, and its respective shareholders, trustees, directors, officers, agents, and representatives (collectively, the “State Street Indemnified Persons”) for, and will pay to the State Street Indemnified Persons the amount of, any Damages, arising from or in connection with (i) any act or omission by State Street (or any of its affiliates) which constitutes a breach of any representation, warranty, term, or obligation contained in this Agreement or (ii) any act or omission by State Street (or any of its affiliates) which constitutes negligence, reckless misconduct, willful malfeasance, or lack of good faith in fulfilling the terms and obligations of this Agreement; provided, however, that State Street shall not be required to provide indemnification for damages arising from errors caused by inaccurate prices received from independent pricing services and reasonably relied upon by State Street. In the event that State Street is required to provide indemnification under this Section XII, its liability shall be limited as described under Section XIII below. The remedies provided in this paragraph are not exclusive of or limit any other remedies that may be available to the Trust or any other State Street Indemnified Person. The indemnification and limitation of liability contained herein shall survive the termination of this Agreement.