Common use of INDEMNIFICATION BY THE INVESTMENT MANAGER Clause in Contracts

INDEMNIFICATION BY THE INVESTMENT MANAGER. The Investment Manager on behalf of itself, the Fund, and the Distributor agrees to indemnify and hold harmless the Company and each person who controls, is controlled by or is affiliated with the Company within the meaning of such terms under the federal securities laws and any officer, director, employee or agent of the foregoing, against any and all losses, claims, damages or liabilities, joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted), to which they or any of them may become subject under any statute or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund Registration Statement, Fund Prospectus (or any amendment or supplement thereto) or sales literature or other promotional material of the Fund, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made; provided that this obligation to indemnify shall not apply if such statement or omission or alleged statement or alleged omission was made in reliance upon and in conformity with information furnished in writing by the, Company to the Fund or the Investment Manager for use in the Fund Registration Statement, Fund Prospectus (or any amendment or supplement thereto) or sales literature for the Fund or otherwise for use in connection with the sale of the Contracts or Fund shares; or (b) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact made by the Investment Manager, the Fund or the Distributor (other than statements or representations contained in the Fund Registration Statement, Fund Prospectus or sales literature or other promotional material of the Fund not supplied by the Investment Manager or the Fund or persons under their control) or wrongful conduct of the Investment Manager or persons under its control with respect to the sale or distribution of the Contracts or Fund shares; or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in the Contracts Registration Statement, Contracts Prospectus or sales literature or other promotional material for the Contracts (or any amendment or supplement thereto), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, if such statement or omission was made in reliance upon information furnished in writing by the Investment Manager or the Fund to the Company (or a person authorized in writing to do so on behalf of the Fund or the Investment Manager); or

INDEMNIFICATION BY THE INVESTMENT MANAGER. The Investment Manager on ----------------------------------------- behalf of itself, the Fund, and the Distributor agrees to indemnify and hold harmless the Company and each person who controls, is controlled by or is affiliated with the Company within the meaning of such terms under the federal securities laws and any officer, director, employee or agent of the foregoing, against any and all losses, claims, damages or liabilities, joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted), to which they or any of them may become subject under any statute or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund Registration Statement, Fund Prospectus (or any amendment or supplement thereto) or sales literature or other promotional material of the Fund, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made; provided that this obligation to indemnify shall not apply if such statement or omission or alleged statement or alleged omission was made in reliance upon and in conformity with information furnished in writing by the, the Company to the Fund or the Investment Manager for use in the Fund Registration Statement, Fund Prospectus (or any amendment or supplement thereto) or sales literature for the Fund or otherwise for use in connection with the sale of the Contracts or Fund shares; or or (b) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact made by the Investment Manager, the Fund or the Distributor (other than statements or representations contained in the Fund Registration Statement, Fund Prospectus or sales literature or other promotional material of the Fund not supplied by the Investment Manager or the Fund or persons under their control) or wrongful conduct of the Investment Manager or persons under its control with respect to the sale or distribution of the Contracts or Fund shares; or or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in the Contracts Registration Statement, Contracts Prospectus or sales literature or other promotional material for the Contracts (or any amendment or supplement thereto), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, if such statement or omission was made in reliance upon information furnished in writing by the Investment Manager or the Fund to the Company (or a person authorized in writing to do so on behalf of the Fund or the Investment Manager); or (d) arise as a result of any failure by the Fund to provide the services and furnish the materials under the terms of this Agreement (including, but not by way of limitation, a failure, whether unintentional or in good faith or otherwise: (i) to comply with the diversification requirements specified in Article VI of this Agreement; and (ii) to provide the Company with accurate information sufficient for it to calculate its accumulation and/or annuity unit values in timely fashion as required by law and by the Contracts Prospectuses); or (e) arise out of any material breach by the Investment Manager or the Fund of this Agreement. This indemnification will be in addition to any liability which the Investment Manager may otherwise have; provided, however, that no party shall be entitled to indemnification if such loss, claim, damage or liability is due to the willful misfeasance, bad faith, gross negligence or reckless disregard of duty by the party seeking indemnification.

INDEMNIFICATION BY THE INVESTMENT MANAGER. The Investment Manager on behalf of itself, the Fund, and the Distributor agrees to indemnify and hold harmless the Company and each person who controls, is controlled by or is affiliated with the Company within the meaning of such terms under the federal securities laws and any officer, director, employee or agent of the foregoing, against any and all losses, claims, damages or liabilities, joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted), to which they or any of them may become subject under any statute or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities: (a) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund Registration Statement, Fund Prospectus (or any amendment or supplement thereto) or sales literature or other promotional material of the Fund, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made; provided that this obligation to indemnify shall not apply if such statement or omission or alleged statement or alleged omission was made in reliance upon and in conformity with information furnished in writing by the, the Company to the Fund or the Investment Manager for use in the Fund Registration Statement, Fund Prospectus (or any amendment or supplement thereto) or sales literature for the Fund or otherwise for use in connection with the sale of the Contracts or Fund shares; or or (b) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact made by the Investment Manager, the Fund or the Distributor (other than statements or representations contained in the Fund Registration Statement, Fund Prospectus or sales literature or other promotional material of the Fund not supplied by the Investment Manager or the Fund or persons under their control) or wrongful conduct of the Investment Manager or persons under its control with respect to the sale or distribution of the Contracts or Fund shares; or or (c) arise out of any untrue statement or alleged untrue statement of a material fact contained in the Contracts Registration Statement, Contracts Prospectus or sales literature or other promotional material for the Contracts (or any amendment or supplement thereto), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, if such statement or omission was made in reliance upon information furnished in writing by the Investment Manager or the Fund to the Company (or a person authorized in writing to do so on behalf of the Fund or the Investment Manager); or (d) arise as a result of any failure by the Fund to provide the services and furnish the materials under the terms of this Agreement (including, but not by way of limitation, a failure, whether unintentional or in good faith or otherwise: (i) to comply with the diversification requirements specified in Article VI of this Agreement; and (ii) to provide the Company with accurate information sufficient for it to calculate its accumulation and/or annuity unit values in timely fashion as required by law and by the Contracts Prospectuses); or (e) arise out of any material breach by the Investment Manager or the Fund of this Agreement. This indemnification will be in addition to any liability which the Investment Manager may otherwise have; provided, however, that no party shall be entitled to indemnification if such loss, claim, damage or liability is due to the willful misfeasance, bad faith, gross negligence or reckless disregard of duty by the party seeking indemnification.

INDEMNIFICATION BY THE INVESTMENT MANAGER. The Investment Manager on behalf of itself, the Fund, and the Distributor agrees to indemnify and hold harmless the Company and each person who controls, is controlled by or is affiliated with the Company within the meaning of such terms under the federal securities laws and any officer, director, employee or agent of the foregoing, against any and all losses, claims, damages or liabilities, joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement of, any action, suit or proceeding or any claim asserted), to which they or any of them may become subject under any statute or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities: (ai) arise Arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund Trust Registration Statement, Fund Trust Prospectus (or any amendment or supplement thereto) or sales literature or other promotional material of the FundTrust, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made; provided that this obligation to indemnify shall not apply if such statement or omission or alleged statement or alleged omission was made in reliance upon and in conformity with information furnished in writing by the, or on behalf of the Company to the Fund or the Investment Manager Distributor for use in the Fund Trust Registration Statement, Fund Trust Prospectus (or any amendment or supplement thereto) or ), sales literature or other promotional material for the Fund Trust or otherwise for use in connection with the sale of the Contracts or Fund sharesShares; or or (bii) arise Arise out of or are based upon any untrue statement or alleged untrue statement of a material fact made by the Investment Manager, the Fund or the Distributor Manager (other than statements or representations contained in the Fund Trust Registration Statement, Fund Trust Prospectus or sales literature or other promotional material of the Fund Trust not supplied by the Investment Manager or the Fund or persons under their control) or wrongful conduct of the Investment Manager or persons under its control with respect to the sale or distribution of the Contracts or Fund sharescontrol); or or (ciii) arise Arise out of any untrue statement or alleged untrue statement of a material fact contained in the Contracts Registration Statement, Contracts Prospectus or sales literature or other promotional material for the Contracts (or any amendment or supplement thereto), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, if such statement or omission was made in reliance upon information furnished in writing by the Investment Manager or the Fund to the Company (or a person authorized in writing to do so on behalf of the Fund or the Investment Manager); or (iv) Arise as a result of any failure by the Investment Manager to provide the services and furnish the materials under the terms of this Agreement including but not limited to the provisions of Section 2.4; or (v) Arise out of any material breach by the Investment Manager of this Agreement. This indemnification will be in addition to any liability which the Investment Manager may otherwise have; provided, however, that no party shall be entitled to indemnification if such loss, claim, damage or liability is due to the willful misfeasance, bad faith, gross negligence or reckless disregard of duty by the party seeking indemnification.