Indemnification Liability. a. Each Applicant, unless it is a government entity, acknowledges and agrees that DirectTrust, and their respective employees, officers, directors, representatives and agents (each, an “Indemnitee”) shall have no liability for and each Applicant shall, to the fullest extent permitted by applicable law, indemnify, defend, and hold Indemnitees harmless from third-party claims and actions that arise out of, relate to or result from (i) the acceptance and review, and approval or disapproval of Applicant’s application for DirectTrust Accreditation (other than claims or actions arising out of, related to or resulting from the Indemnitee’s negligence or willful misconduct), or (ii) an Applicant’s breach of its specific obligations under this Agreement. Applicant represents and warrants to DirectTrust that it is aware of the role of the EHNAC Commissioners that are listed on the DirectTrust website and Applicant acknowledges and accepts the fact that one or more EHNAC Commissioners may have personal, professional or business relationships (including employment) to organizations that may compete with the Applicant or that might view the Applicant as a competitor. The obligations of each Applicant party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless each Indemnitee shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby;
Appears in 1 contract
Samples: Accreditation Program Agreement
Indemnification Liability. a. Each Applicant, unless it is a government entity, acknowledges and agrees that DirectTrust, and their respective employees, officers, directors, representatives and agents (each, an “Indemnitee”) shall have no liability for and each Applicant shall, to A. To the fullest extent permitted by applicable law, including Section 17(h) and Section 17(i) of the 1940 Act, and subject to the limitations below, the Distributor will not be liable for and the Fund agrees to indemnify, defend, defend and hold Indemnitees the Distributor, its affiliates and each of their respective members, managers, directors, officers, employees, representatives and any person or entity who controls the Distributor within the meaning of Section 15 of the 1933 Act (collectively, the “Distributor Indemnitees”), free and harmless from third-party claims and actions against any and all losses, claims, demands, liabilities, damages and expenses (including the commercially reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred in connection therewith) (collectively, “Losses”) that arise any Distributor Indemnitee may incur under the 1933 Act, the 1934 Act, the 1940 Act, any other statute (including blue sky laws), or any rule or regulation thereunder, or under common law or otherwise, arising out of, relate of or relating to or result from (i) the acceptance and review, and approval or disapproval Distributor serving as principal underwriter of Applicant’s application for DirectTrust Accreditation (other than claims or actions arising out of, related the Fund pursuant to or resulting from the Indemnitee’s negligence or willful misconduct), or this Agreement; (ii) an Applicantthe Fund’s material breach of any of its specific obligations under obligations, representations, warranties or covenants contained in this Agreement. Applicant represents ; (iii) the Fund’s failure to comply with any applicable securities laws or regulations; or (iv) any claim that the Registration Statement, Prospectus, shareholder reports, sales literature and warrants advertising materials or other information filed or made public by the Fund (as from time to DirectTrust that it is aware time amended) include or included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading under the 1933 Act, or any other statute or the common law any violation of any rule of FINRA or of the role SEC or any other jurisdiction wherein Shares of the EHNAC Commissioners that Fund are listed on the DirectTrust website and Applicant acknowledges and accepts the fact that one or more EHNAC Commissioners may have personalsold, professional or business relationships (including employment) to organizations that may compete with the Applicant or that might view the Applicant as a competitor. The obligations of each Applicant party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless each Indemnitee shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that the Fund’s obligation to indemnify any failure of the Distributor Indemnitees shall not be deemed to cover any Losses that, as determined by a court of competent jurisdiction in a final decision on the merits, the Registration Statement, Prospectus, sales literature and advertising materials or delay other information filed or made public by the Fund (as from time to time may be amended or supplemented) include or included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in giving order to make the statements not misleading, insofar as such statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by the Distributor in writing for use in such Registration Statement, Prospectus, sales literature and advertising materials or other information filed or made public by the Fund. In no event shall anything contained herein be so construed as to protect the Distributor against any liability to the Fund or its shareholders to which the Distributor would otherwise be subject by reason of willful misfeasance, bad faith, reckless disregard or gross negligence in the performance of its duties under this Agreement.
B. The Distributor agrees to notify Fund of any such action or claim of loss brought against any Distributor Indemnitee within a reasonable time following notice of the nature of the claim has been served upon such Distributor Indemnitee. Failure to notify the Fund of any such action shall only not relieve the Indemnitor Fund from any liability which the Fund may have to any Distributor Indemnitee except to the extent that the ability of the Fund to defend such action has been materially adversely affected by the failure of such Distributor Indemnitee to provide notice.
C. The Fund shall be entitled to participate at its obligation own expense in the defense or, if it so elects, to defendassume the defense of any suit brought to enforce any such Losses, indemnify but if the Fund elects to assume the defense, such defense shall be conducted by counsel chosen upon the agreement of the Parties, which approval shall not be unreasonably withheld. In the event the Fund elects to assume the defense of any such suit and retain such counsel, the Distributor Indemnitee(s) in such suit shall bear the fees and expenses of any additional counsel retained by them. If the Fund does not elect to assume the defense of any such suit, or in case the Distributor does not, in the exercise of reasonable judgment, approve of counsel chosen by the Fund or, if under prevailing law or legal codes of ethics, the same counsel cannot effectively represent the interests of both the Fund and the Distributor Indemnitee(s), the Fund will reimburse the Distributor Indemnitee(s) in such suit, for the reasonable fees and expenses of any counsel retained by Distributor and them. A Distributor Indemnitee shall not settle or confess any claim without the prior written consent of the Fund, such consent to not be unreasonably withheld or delayed. The Fund’s indemnification agreement contained in Section 7 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor Indemnitee(s) and shall survive the delivery of any Shares and termination of this Agreement. This agreement of indemnity will inure exclusively to the benefit of each Distributor Indemnitee.
D. The Fund shall not be liable for and Distributor shall indemnify, defend and hold the Fund, its affiliates, and each of their respective directors, officers, employees, representatives, and any person who controls or previously controlled the Fund within the meaning of Section 15 of the 1933 Act (collectively, the “Fund Indemnitees”), free and harmless from and against any and all Losses that any Fund Indemnitee harmless may incur under the 1933 Act, the 1934 Act, the 1940 Act, any other statute (including blue sky laws), or any rule or regulation thereunder, or under common law or otherwise, directly arising out of or based upon , as determined by a court of competent jurisdiction in a final decision on the merits, (i) the Distributor’s material breach of any of its obligations, representations, warranties or covenants contained in this Agreement due to the extent it reasonably demonstrates Distributor’s willful misfeasance, bad faith, reckless disregard, or gross negligence; (ii) any claim that its defense the Registration Statement, Prospectus, sales literature and advertising materials or settlement of the claim or suit was adversely affected thereby;other information filed or
Appears in 1 contract
Samples: Distribution Agreement (Coller Secondaries Private Equity Opportunities Fund)
Indemnification Liability. a. Each Applicant, unless it is a government entity, acknowledges and agrees that DirectTrust, and their respective employees, officers, directors, representatives and agents (each, an “Indemnitee”) shall have no liability for and each Applicant shall, to the fullest extent permitted by applicable law, indemnify, defend, and hold Indemnitees harmless from third-party claims and actions that arise out of, relate to or result from (i) the acceptance and review, and approval or disapproval of Applicant’s application for DirectTrust Accreditation (other than claims or actions arising out of, related to or resulting from the Indemnitee’s negligence or willful misconduct), or (ii) an Applicant’s breach of its specific obligations under this Agreement. Applicant represents and warrants to DirectTrust that it is aware of the role of the EHNAC Commissioners that are listed on the DirectTrust website and Applicant acknowledges and accepts the fact that one or more EHNAC Commissioners may have personal, professional or business relationships (including employment) to organizations that may compete with the Applicant or that might view the Applicant as a competitor. The obligations of each Applicant party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless each Indemnitee shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby;
Appears in 1 contract
Samples: Accreditation Program Agreement
Indemnification Liability. a. Each Applicant, unless it is a government entity, acknowledges and agrees that DirectTrust, and their respective employees, officers, directors, representatives and agents (each, an “Indemnitee”) shall have no liability for and each Applicant shall, to the fullest extent permitted by applicable law, indemnify, defend, and hold Indemnitees harmless from third-party claims and actions that arise out of, relate to or result from (i) the acceptance and review, and approval or disapproval of Applicant’s application for DirectTrust Accreditation (other than claims or actions arising out of, related to or resulting from the Indemnitee’s negligence or willful misconduct), or (ii) an Applicant’s breach of its specific obligations under this Agreement. Applicant represents and warrants to DirectTrust that it is aware of the role of the EHNAC Commissioners that are listed on the DirectTrust website and Applicant acknowledges and accepts the fact that one or more EHNAC Commissioners may have personal, professional or business relationships (including employment) to organizations that may compete with the Applicant or that might view the Applicant as a competitor. The obligations of each Applicant party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless each Indemnitee shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby;; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
Appears in 1 contract
Samples: Accreditation Program Agreement
Indemnification Liability. a. Each Applicant, unless it is a government entity, acknowledges and agrees that DirectTrust, and their respective employees, officers, directors, representatives and agents (each, an “Indemnitee”) shall have no liability for and each Applicant shall, to A. To the fullest extent permitted by applicable law, including Section 17(h) and Section 17(i) of the 1940 Act, and subject to the limitations below, the Distributor will not be liable for and the Fund agrees to indemnify, defend, defend and hold Indemnitees the Distributor, its affiliates and each of their respective members, managers, directors, officers, employees, representatives and any person or entity who controls the Distributor within the meaning of Section 15 of the 1933 Act (collectively, the “Distributor Indemnitees”), free and harmless from third-party claims and actions against any and all losses, claims, demands, liabilities, damages and expenses (including the reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred in connection therewith) (collectively, “Losses”) that arise any Distributor Indemnitee may incur under the 1933 Act, the 1934 Act, the 1940 Act, any other statute (including blue sky laws), or any rule or regulation thereunder, or under common law or otherwise, arising out of, relate of or relating to or result from (i) the acceptance Distributor serving as principal underwriter of the Fund pursuant to this Agreement; (ii) the Fund’s material breach of any of its obligations, representations, warranties or covenants contained in this Agreement; (iii) the Fund’s failure to comply with any applicable securities laws or regulations; or (iv) any claim that the Registration Statement, Prospectus, shareholder reports, sales literature and reviewadvertising materials or other information filed or made public by the Fund (as from time to time amended) include or included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading under the 1933 Act, or any other statute or the common law any violation of any rule of FINRA or of the SEC or any other jurisdiction wherein Shares of the Fund are sold, provided, however, that the Fund’s obligation to indemnify any of the Distributor Indemnitees shall not be deemed to cover any Losses arising out of any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, Prospectus, annual or interim report, or any such advertising materials or sales literature in reliance upon and in conformity with information relating to the Distributor and furnished to the Fund or its counsel by the Distributor in writing for use is such Registration Statement, Prospectus, shareholder reports, or sales literature and advertising materials. In no event shall anything contained herein be so construed as to protect the Distributor against any liability to the Fund or its shareholders to which the Distributor would otherwise be subject by reason of willful misfeasance, bad faith, reckless disregard or gross negligence in the performance of its duties under this Agreement.
B. The Distributor agrees to notify Fund of any such action or claim of loss brought against any Distributor Indemnitee within a reasonable time following notice of the nature of the claim has been served upon such Distributor Indemnitee. Failure to notify the Fund of any such action shall not relieve the Fund from any liability which the Fund may have to any Distributor Indemnitee except to the extent that the ability of the Fund to defend such action has been materially adversely affected by the failure of such Distributor Indemnitee to provide notice.
C. The Fund shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense of any suit brought to enforce any such Losses, but if the Fund elects to assume the defense, such defense shall be conducted by counsel chosen by the Fund with the consent of the Distributor, which consent shall not be unreasonably withheld. In the event the Fund elects to assume the defense of any such suit and retain such counsel, the Distributor Indemnitee(s) in such suit shall bear the fees and expenses of any additional counsel retained by them. If the Fund does not elect to assume the defense of any such suit, or in case the Distributor does not, in the exercise of reasonable judgment, approve of counsel chosen by the Fund or, if under prevailing law or legal codes of ethics, the same counsel cannot effectively represent the interests of both the Fund and the Distributor Indemnitee(s), the Fund will reimburse the Distributor Indemnitee(s) in such suit, for the reasonable fees and expenses of any counsel retained by Distributor and them. A Distributor Indemnitee shall not settle or confess any claim without the prior written consent of the Fund, such consent to not be unreasonably withheld or delayed. The Fund’s indemnification agreement contained in Section 7 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Distributor Indemnitee(s) and shall survive the delivery of any Shares and termination of this Agreement. This agreement of indemnity will inure exclusively to the benefit of each Distributor Indemnitee.
D. The Fund shall advance attorney’s fees and other expenses incurred by a Distributor Indemnitee in defending any claim, demand, action or suit which is the subject of a claim for indemnification pursuant to this Section 7 to the maximum extent permissible under applicable law.
E. Distributor shall indemnify, defend and hold the Fund, its affiliates, and approval each of their respective directors, officers, employees, representatives, and any person who controls or disapproval previously controlled the Fund within the meaning of Applicant’s application for DirectTrust Accreditation Section 15 of the 1933 Act (collectively, the “Fund Indemnitees”), free and harmless from and against any and all Losses that any Fund Indemnitee may incur under the 1933 Act, the 1934 Act, the 1940 Act, any other than claims statute (including blue sky laws), or actions any rule or regulation thereunder, or under common law or otherwise, directly arising out ofof or based upon (i) any act (or omission to act) made with gross negligence, related to or resulting from the Indemnitee’s negligence bad faith, or willful misconduct)misfeasance by Distributor or its agents taken in connection with this Agreement, or (ii) any claim that the Registration Statement, Prospectus, sales literature and advertising materials or other information filed or made public by the Fund (as from time to time amended) include or included an Applicant’s breach untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements not misleading, insofar as such statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by the Distributor in writing for use in such Registration Statement, Prospectus, sales literature and advertising materials or other information filed or made public by the Fund. In no event shall anything contained herein be so construed as to protect the Fund against any liability to the Distributor to which the Fund would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its specific duties under this Agreement or by reason of its reckless disregard of its obligations under this Agreement. Applicant represents and warrants .
F. The Fund agrees to DirectTrust that it is aware notify Distributor of the role any such action or claim of the EHNAC Commissioners that are listed on the DirectTrust website and Applicant acknowledges and accepts the fact that one or more EHNAC Commissioners may have personal, professional or business relationships (including employment) to organizations that may compete with the Applicant or that might view the Applicant as loss brought against any Fund Indemnitee within a competitor. The obligations of each Applicant party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless each Indemnitee shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt reasonable time following notice of the nature of the claim giving rise has been served upon such Fund Indemnitee. The failure so to notify the Distributor of any such obligationaction shall not relieve the Distributor from any liability which the Distributor may have to any Fund Indemnitee except to the extent that the ability of the Distributor to defend such action has been materially adversely affected by the failure of such Fund Indemnitee to provide notice.
G. The Distributor shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense of any suit brought to enforce any such Losses, but if the Distributor elects to assume the defense, such defense shall be conducted by counsel chosen by the Distributor with the consent of the Fund, which consent shall not be unreasonably withheld. In the event the Distributor elects to assume the defense of any such suit and retain such counsel, the Fund Indemnitee(s) in such suit shall bear the fees and expenses of any additional counsel retained by them. If the Distributor does not elect to assume the defense of any such suit, or in case the Fund does not, in the exercise of reasonable judgment, approve of counsel chosen by the Distributor or, if under prevailing law or legal codes of ethics, the same counsel cannot effectively represent the interests of both the Distributor and the Fund Indemnitee(s), the Distributor will reimburse the Fund Indemnitee(s) in such suit, for the reasonable fees and expenses of any counsel retained by the Fund and them. The Distributor’s indemnification agreement contained in this Section 7 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Fund Indemnitee(s) and shall survive the delivery of any Shares and termination of this Agreement. This agreement of indemnity will inure exclusively to the benefit of each Fund Indemnitee A Fund Indemnitee shall not settle or confess any claim without the prior written consent of the Distributor, such consent not to be unreasonably withheld or delayed.
H. No person shall be obligated to provide indemnification under this Section 7 if such indemnification would be impermissible under the 1940 Act, the 1933 Act, the 1934 Act or the rules of the FINRA; provided, however, that any failure or delay in giving such notice event indemnification shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless be provided under this Section 7 to the maximum extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby;so permissible.
Appears in 1 contract
Samples: Distribution Agreement (Octagon XAI CLO Income Fund)
