Common use of Indemnification of the Trust and Investment Adviser Clause in Contracts

Indemnification of the Trust and Investment Adviser. Underwriter agrees to indemnify and hold harmless the Trust, Investment Adviser and each person who has been, is, or may hereafter be a trustee, director, officer, employee, shareholder or control person of the Trust (“Trust/Investment Adviser Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Trust/Investment Adviser Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Trust-related advertisement or sales literature, or upon the omission or alleged omission to state a material fact in such materials necessary to make the statements therein not misleading, which untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter or any agent or employee of Underwriter or any other person for whose acts Underwriter is responsible, for use in the Registration Statement or in corresponding statements made in any advertisement or sales literature, unless such statement or omission was made in reliance upon written information furnished by the Trust; (b) the willful misfeasance, bad faith or negligence of the Underwriter in the performance of its obligations under this Agreement, or the Underwriter’s reckless disregard of its obligations under this Agreement; (c) the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder; (d) Underwriter’s failure to exercise reasonable care and diligence with respect to its services, if any, rendered in connection with investment, reinvestment, automatic withdrawal and other plans for Shares; or (e) the material breach by the Underwriter of any provision of this Agreement; provided, however, that the Underwriter’s agreement to indemnify the Trust/Investment Adviser Indemnitees pursuant to this Paragraph 8 shall not be construed to cover any Claims (A) arising out of or based upon the willful misfeasance, bad faith or negligence of the Trust in the performance of its obligations under this Agreement or the Trust’s or Investment Adviser’s reckless disregard of its obligations under this Agreement; or (B) arising out of or based upon the Trust’s or Investment Adviser’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder. The term “expenses” for purposes of Paragraphs 8 and 9 includes amounts paid in satisfaction of judgments or in settlements which are made with the indemnifying party’s consent. The foregoing rights of indemnification shall be in addition to any other rights to which the Trust, the Investment Adviser or each such person may be entitled as a matter of law. In the event of a Claim for which the Trust/Investment Adviser Indemnitees may be entitled to indemnification hereunder, the Trust or Investment Adviser shall fully and promptly advise the Underwriter in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Underwriter’s indemnification obligations under this Agreement except to the extent that the Underwriter is materially prejudiced thereby. The Underwriter will be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Underwriter and approved by the Trust or Investment Adviser, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Underwriter’s part, the Trust or Investment Adviser shall have the right to participate in the defense. In the event the Underwriter elects to assume the defense of any such suit and retain counsel of good standing so approved by the Trust or Investment Adviser, the Trust/Investment Adviser Indemnitees in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in any case where the Underwriter does not elect to assume the defense of any such suit or in case the Trust or Investment Adviser reasonably withholds approval of counsel chosen by the Underwriter, the Underwriter will reimburse the Trust/Investment Adviser Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a Claim covered under this Paragraph 8. The Underwriter’s indemnification agreement contained in this Paragraph 8 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Trust/Investment Adviser Indemnitees, and shall survive the delivery of any Shares.

Indemnification of the Trust and Investment Adviser. Underwriter agrees to indemnify and hold harmless the Trust, Investment Adviser and each person who has been, is, or may hereafter be a trustee, director, officer, employee, shareholder or control person of the Trust (“Trust/Investment Adviser Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Trust/Investment Adviser Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Trust-related advertisement or sales literature, or upon the omission or alleged omission to state a material fact in such materials necessary to make the statements therein not misleading, which untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter or any agent or employee of Underwriter or any other person for whose acts Underwriter is responsible, for use in the Registration Statement or in corresponding statements made in any advertisement or sales literature, unless such statement or omission was made in reliance upon written information furnished by the Trust; (b) the willful misfeasance, bad faith or negligence of the Underwriter in the performance of its obligations under this Agreement, or the Underwriter’s reckless disregard of its obligations under this Agreement; (c) the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder; or (d) Underwriter’s failure to exercise reasonable care and diligence with respect to its services, if any, rendered in connection with investment, reinvestment, automatic withdrawal and other plans for Shares; or (e) the material breach by the Underwriter of any provision of this Agreement; provided, however, that the Underwriter’s agreement to indemnify the Trust/Investment Adviser Indemnitees pursuant to this Paragraph Section 8 shall not be construed to cover any Claims (A) arising out of or based upon the willful misfeasance, bad faith or negligence of the Trust in the performance of its obligations under this Agreement or the Trust’s or Investment Adviser’s reckless disregard of its obligations under this Agreement; or (B) arising out of or based upon the Trust’s or Investment Adviser’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder. The term “expenses” for purposes of Paragraphs Sections 8 and 9 includes amounts paid in satisfaction of judgments or in settlements which are made with the indemnifying party’s consent. The foregoing rights of indemnification shall be in addition to any other rights to which the Trust, the Investment Adviser or each such person may be entitled as a matter of law. In the event of a Claim for which the Trust/Investment Adviser Indemnitees may be entitled to indemnification hereunder, the Trust or Investment Adviser shall fully and promptly advise the Underwriter in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Underwriter’s indemnification obligations under this Agreement except to the extent that the Underwriter is materially prejudiced thereby. The Underwriter will be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Underwriter and approved by the Trust or Investment Adviser, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Underwriter’s part, the Trust or Investment Adviser shall have the right to participate in the defense. In the event the Underwriter elects to assume the defense of any such suit and retain counsel of good standing so approved by the Trust or Investment Adviser, the Trust/Investment Adviser Indemnitees in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in any case where the Underwriter does not elect to assume the defense of any such suit or in case the Trust or Investment Adviser reasonably withholds approval of counsel chosen by the Underwriter, the Underwriter will reimburse the Trust/Investment Adviser Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a Claim covered under this Paragraph Section 8. The Underwriter’s indemnification agreement contained in this Paragraph Section 8 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Trust/Investment Adviser Indemnitees, and shall survive the delivery of any Shares.

Indemnification of the Trust and Investment Adviser. Underwriter agrees to indemnify and hold harmless the Trust, Investment Adviser and each person who has been, is, or may hereafter be a trustee, director, officer, employee, shareholder or control person of the Trust (“"Trust/Investment Adviser Indemnitees”") against any loss, damage or expense (including the reasonable costs of investigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Trust/Investment Adviser Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“"Claims”") to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Trust-related advertisement or sales literature, or upon the omission or alleged omission to state a material fact in such materials necessary to make the statements therein not misleading, which untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter or any agent or employee of Underwriter or any other person for whose acts Underwriter is responsible, for use in the Registration Statement or in corresponding statements made in any advertisement or sales literature, unless such statement or omission was made in reliance upon written information furnished by the Trust; (b) the willful misfeasance, bad faith or negligence of the Underwriter in the performance of its obligations under this Agreement, or the Underwriter’s reckless disregard of its obligations under this Agreement; (c) the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder; (d) Underwriter’s failure to exercise reasonable care and diligence with respect to its services, if any, rendered in connection with investment, reinvestment, automatic withdrawal and other plans for Shares; or , (e) the material breach by the Underwriter of any provision of this Agreement; provided, however, that the Underwriter’s agreement to indemnify the Trust/Investment Adviser Indemnitees pursuant to this Paragraph 8 shall not be construed to cover any Claims (A) arising out of or based upon the willful misfeasance, bad faith or negligence of the Trust in the performance of its obligations under this Agreement or the Trust’s or Investment Adviser’s reckless disregard of its obligations under this Agreement; or (B) arising out of or based upon the Trust’s 's or Investment Adviser’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder. The term “expenses” for purposes of Paragraphs 8 and 9 includes amounts paid in satisfaction of judgments or in settlements which are made with the indemnifying party’s 's consent. The foregoing rights of indemnification shall be in addition to any other rights to which the Trust, the Investment Adviser or each such person may be entitled as a matter of law. In the event of a Claim for which the Trust/Investment Adviser Indemnitees may be entitled to indemnification hereunder, the Trust or Investment Adviser shall fully and promptly advise the Underwriter in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Underwriter’s indemnification obligations under this Agreement except to the extent that the Underwriter is materially prejudiced thereby. The Underwriter will be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Underwriter and approved by the Trust or Investment Adviser, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Underwriter’s part, the Trust or Investment Adviser shall have the right to participate in the defense. In the event the Underwriter elects to assume the defense of any such suit and retain counsel of good standing so approved by the Trust or Investment Adviser, the Trust/Investment Adviser Indemnitees in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in any case where the Underwriter does not elect to assume the defense of any such suit or in case the Trust or Investment Adviser reasonably withholds approval of counsel chosen by the Underwriter, the Underwriter will reimburse the Trust/Investment Adviser Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a Claim covered under this Paragraph 8. The Underwriter’s indemnification agreement contained in this Paragraph 8 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Trust/Investment Adviser Indemnitees, and shall survive the delivery of any Shares.

Indemnification of the Trust and Investment Adviser. Underwriter agrees to indemnify and hold harmless the Trust, Investment Adviser and each person who has been, is, or may hereafter be a trustee, director, officer, employee, shareholder or control person of the Trust (“Trust/Investment Adviser Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Trust/Investment Adviser Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Trust-related advertisement or sales literature, or upon the omission or alleged omission to state a material fact in such materials necessary to make the statements therein not misleading, which untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter or any agent or employee of Underwriter or any other person for whose acts Underwriter is responsible, for use in the Registration Statement or in corresponding statements made in any advertisement or sales literature, unless such statement or omission was made in reliance upon written information furnished by the Trust; (b) the willful misfeasance, bad faith or negligence of the Underwriter in the performance of its obligations under this Agreement, or the Underwriter’s reckless disregard of its obligations under this Agreement; (c) the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder; or (d) Underwriter’s failure to exercise reasonable care and diligence with respect to its services, if any, rendered in connection with investment, reinvestment, automatic withdrawal and other plans for Shares; or (e) the material breach by the Underwriter of any provision of this Agreement; provided, however, that the Underwriter’s agreement to indemnify the Trust/Investment Adviser Indemnitees pursuant to this Paragraph 8 shall not be construed to cover any Claims (A) arising out of or based upon the willful misfeasance, bad faith or negligence of the Trust in the performance of its obligations under this Agreement or the Trust’s or Investment Adviser’s reckless disregard of its obligations under this Agreement; or (B) arising out of or based upon the Trust’s or Investment Adviser’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder. The term “expenses” for purposes of Paragraphs 8 and 9 includes amounts paid in satisfaction of judgments or in settlements which are made with the indemnifying party’s consent. The foregoing rights of indemnification shall be in addition to any other rights to which the Trust, the Investment Adviser or each such person may be entitled as a matter of law. In the event of a Claim for which the Trust/Investment Adviser Indemnitees may be entitled to indemnification hereunder, the Trust or Investment Adviser shall fully and promptly advise the Underwriter in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Underwriter’s indemnification obligations under this Agreement except to the extent that the Underwriter is materially prejudiced thereby. The Underwriter will be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Underwriter and approved by the Trust or Investment Adviser, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Underwriter’s part, the Trust or Investment Adviser shall have the right to participate in the defense. In the event the Underwriter elects to assume the defense of any such suit and retain counsel of good standing so approved by the Trust or Investment Adviser, the Trust/Investment Adviser Indemnitees in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in any case where the Underwriter does not elect to assume the defense of any such suit or in case the Trust or Investment Adviser reasonably withholds approval of counsel chosen by the Underwriter, the Underwriter will reimburse the Trust/Investment Adviser Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a Claim covered under this Paragraph 8. The Underwriter’s indemnification agreement contained in this Paragraph 8 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Trust/Investment Adviser Indemnitees, and shall survive the delivery of any Shares.

Indemnification of the Trust and Investment Adviser. Underwriter agrees to indemnify and hold harmless the Trust, Investment Adviser and each person who has been, is, or may hereafter be a trustee, director, officer, employee, shareholder or control person of the Trust (“Trust/Investment Adviser Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Trust/Investment Adviser Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Trust-related advertisement or sales literature, or upon the omission or alleged omission to state a material fact in such materials necessary to make the statements therein not misleading, which untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter or any agent or employee of Underwriter or any other person for whose acts Underwriter is responsible, for use in the Registration Statement or in corresponding statements made in any advertisement or sales literature, unless such statement or omission was made in reliance upon written information furnished by the Trust; (b) the willful misfeasance, bad faith or negligence of the Underwriter in the performance of its obligations under this Agreement, or the Underwriter’s reckless disregard of its obligations under this Agreement; (c) the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder; or (d) Underwriter’s failure to exercise reasonable care and diligence with respect to its services, if any, rendered in connection with investment, reinvestment, automatic withdrawal and other plans for Shares; or (e) the material breach by the Underwriter of any provision of this Agreement; provided, however, that the Underwriter’s agreement to indemnify the Trust/Investment Adviser Indemnitees pursuant to this Paragraph 8 shall not be construed to cover any Claims (A) arising out of or based upon the willful misfeasance, bad faith or negligence negligence, including clerical errors and mechanical failures, of the Trust in the performance of its obligations under this Agreement or the Trust’s or Investment Adviser’s reckless disregard of its obligations under this Agreement; or (B) arising out of or based upon the Trust’s or Investment Adviser’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder. The term “expenses” for purposes of Paragraphs 8 and 9 includes amounts paid in satisfaction of judgments or in settlements which are made with the indemnifying party’s consent. The foregoing rights of indemnification shall be in addition to any other rights to which the Trust, the Investment Adviser or each such person may be entitled as a matter of law. In the event of a Claim for which the Trust/Investment Adviser Indemnitees may be entitled to indemnification hereunder, the Trust or Investment Adviser shall fully and promptly advise the Underwriter in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Underwriter’s indemnification obligations under this Agreement except to the extent that the Underwriter is materially prejudiced thereby. The Underwriter will be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Underwriter and approved by the Trust or Investment Adviser, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Underwriter’s part, the Trust or Investment Adviser shall have the right to participate in the defense. In the event the Underwriter elects to assume the defense of any such suit and retain counsel of good standing so approved by the Trust or Investment Adviser, the Trust/Investment Adviser Indemnitees in such suit shall bear the fees and expenses of any additional counsel retained by any of them, but in any case where the Underwriter does not elect to assume the defense of any such suit or in case the Trust or Investment Adviser reasonably withholds approval of counsel chosen by the Underwriter, the Underwriter will reimburse the Trust/Investment Adviser Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a Claim covered under this Paragraph 8. The Underwriter’s indemnification agreement contained in this Paragraph 8 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Trust/Investment Adviser Indemnitees, and shall survive the delivery of any Shares.