Common use of Indemnification of Trustees and Officers Clause in Contracts

Indemnification of Trustees and Officers. The Trust shall indemnify each person who at any time serves as a Trustee or officer of the Trust (each a “Covered Person”), against all liabilities and expenses (including amounts paid in satisfaction of judgments, in compromise, as fines and penalties, and expenses including reasonable attorneys’ and accountants’ fees) reasonably incurred in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which he or she may be involved or with which he or she may be threatened, by reason of being or having been a Covered Person, except that no Covered Person shall be indemnified against any liability to the Trust or its Shareholders to which such Covered Person would otherwise be subject by reason of bad faith, willful misfeasance, gross negligence or reckless disregard of his duties involved in the conduct of such Covered Person’s office (such willful misfeasance, bad faith, gross negligence or reckless disregard being referred to herein as “Disabling Conduct”). Expenses, including attorneys’ and accountants’ fees so incurred by any such Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), may be paid from time to time by the Trust in advance of the final disposition of any such action, suit, or proceeding upon receipt of (a) an undertaking by or on behalf of such Covered Person to repay amounts so paid to the Trust if it is ultimately determined that indemnification of such expenses is not authorized under this Article VIII and either (b) such Covered Person provides security for such undertaking, (c) the Trust is insured against losses arising by reason of such payment, or (d) a majority of disinterested, non-party Trustees, or independent legal counsel in a written opinion, determines, based on a review of readily available facts, that there is reason to believe that such Covered Person ultimately will be found entitled to indemnification.

Indemnification of Trustees and Officers. The Trust shall indemnify each person who at any time serves as a Trustee or officer of the Trust (each a ““ Covered PersonPerson ”), against all liabilities and expenses (including amounts paid in satisfaction of judgments, in compromise, as fines and penalties, and expenses including reasonable attorneys’ and accountants’ fees) reasonably incurred in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which he or she may be involved or with which he or she may be threatened, by reason of being or having been a Covered Person, except that no Covered Person shall be indemnified against any liability to the Trust or its Shareholders to which such Covered Person would otherwise be subject by reason of bad faith, willful misfeasance, gross negligence or reckless disregard of his duties involved in the conduct of such Covered Person’s office (such willful misfeasance, bad faith, gross negligence or reckless disregard being referred to herein as ““ Disabling ConductConduct ”). Expenses, including attorneys’ and accountants’ fees so incurred by any such Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), may be paid from time to time by the Trust in advance of the final disposition of any such action, suit, or proceeding upon receipt of (a) an undertaking by or on behalf of such Covered Person to repay amounts so paid to the Trust if it is ultimately determined that indemnification of such expenses is not authorized under this Article VIII and either (b) such Covered Person provides security for such undertaking, (c) the Trust is insured against losses arising by reason of such payment, or (d) a majority of disinterested, non-party Trustees, or independent legal counsel in a written opinion, determines, based on a review of readily available facts, that there is reason to believe that such Covered Person ultimately will be found entitled to indemnification.

Indemnification of Trustees and Officers. The (i) Those provisions of the Amended and Restated Declaration of Trust and By-Laws of the Trust and of the Agreement of Limited Partnership of the Partnership with respect to indemnification, advancement of expenses and limitation on liability for the benefit of the trustees, officers, employees and consultants set forth therein, shall indemnify each person not be amended, repealed, or otherwise modified for a period of six (6) years after the Closing Date in any manner that would adversely affect the rights thereunder of individuals who at any time serves as a Trustee prior to the Closing Date were trustees or officer officers of the Trust in respect of actions or omissions occurring at or prior to the Closing Date (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law. (ii) From and after the Effective Time, the Trust and the Partnership shall indemnify, defend and hold harmless the present and former officers and trustees of the Trust (each collectively, the "Indemnified Parties") against all losses, expenses, claims, damages or liabilities, or amounts that are paid in settlement of, or otherwise in connection with, any claim, action, suit, proceeding or investigation (a “Covered Person”"Claim"), against all liabilities and expenses based in whole or in part on the fact that such person is or was a trustee, officer, employee or agent of the Trust or any Subsidiary thereof (including amounts paid in satisfaction the Partnership) and arising out of judgmentsactions or omissions occurring at or prior to the Closing Date (including, without limitation, the transactions contemplated by this Agreement), in compromise, each case to the full extent permitted under Maryland law as fines and penalties, and expenses including reasonable attorneys’ and accountants’ fees) reasonably incurred in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which he or she may be involved or with which he or she may be threatened, by reason of being or having been a Covered Person, except that no Covered Person shall be indemnified against any liability it pertains to the Trust or its Shareholders and under Delaware law as it pertains to which such Covered Person would otherwise be subject by reason of bad faith, willful misfeasance, gross negligence or reckless disregard of his duties involved in the conduct of such Covered Person’s office Partnership (such willful misfeasance, bad faith, gross negligence or reckless disregard being referred to herein as “Disabling Conduct”). Expenses, including attorneys’ and accountants’ fees so incurred by any such Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), may be paid from time to time by the Trust shall pay in advance of the final disposition of any action or proceeding to each Indemnified party to the fullest extent permitted by Maryland law and Delaware law, as the case may be, upon receipt from the Indemnified Party to whom expenses are advanced of an undertaking to repay such actionadvances in the event that it shall be finally judicially determined that indemnification and the payment of such advances is not permissible under applicable law). (iii) Without limiting the foregoing, suitin the event any Claim is brought against any Indemnified Party (whether arising before or after the Closing Date) after the Closing Date: (A) the Indemnified Parties may retain the Trust's regularly engaged independent legal counsel, or proceeding upon receipt of other independent legal counsel satisfactory to them provided that such other counsel shall be reasonably acceptable to the Trust; (aB) an undertaking by or on behalf the Trust shall pay all reasonable fees and expenses of such Covered Person counsel for the Indemnified Parties promptly as statements therefor are received; and (C) the Trust will use their reasonable best efforts to repay amounts assist in the vigorous defense of any such matter, provided that the Trust shall not be liable for any settlement of any Claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 12(h), upon learning of any such Claim, shall notify the Trust (although the failure so paid to notify the Trust shall not relieve the Trust from any liability which the Trust may have under this Section 12(h) except to the extent such failure prejudices the Trust, and shall deliver to the Trust if it and to the Partnership the undertaking contemplated by the Maryland law and the Delaware law, respectively). The Indemnified Parties as a group may retain one law firm (in addition to local counsel) to represent them with respect to each such matter unless there is, under applicable standards of professional conduct (as reasonably determined by counsel to the Indemnified Parties), a conflict on any significant issue between the positions of any two or more Indemnified Parties in which event, such additional counsel as may be required may be retained by the Indemnified Parties. (iv) The Trust shall cause to be maintained in effect for not less than six (6) years after the Closing Date the current policies of trustees' and officers' liability insurance maintained by the Trust with respect to matters occurring prior to the Closing Date; provided, however, that the Trust may substitute therefor policies of substantially similar coverage containing substantially similar terms and conditions to the extent reasonably available and the Trust shall not be required to pay an annual premium for such insurance in excess of 200% of the last annual premium paid prior to the date of this Agreement, but in such case shall purchase as much coverage as possible for such amount. In addition to, and not in lieu of any other obligation of the Trust and the Partnership under this Section 12(h), each of the Trust and the Partnership shall in all events continue to be obligated under those agreements to which either is ultimately determined that indemnification a party pursuant to which either or both of the Trust and the Partnership has agreed to indemnify and hold harmless the trustees and officers of the Trust on account of claims and proceedings arising on or prior to the Closing Date. (v) This Section 12(h) is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties, their heirs and personal representatives, shall be binding on the Trust and its and their respective successors and assigns, and shall not be amended or modified to adversely affect any such party without the prior written consent of such expenses is not authorized under this Article VIII and either (b) such Covered Person provides security for such undertaking, (c) the Trust is insured against losses arising by reason of such payment, or (d) a majority of disinterested, non-party Trustees, or independent legal counsel in a written opinion, determines, based on a review of readily available facts, that there is reason to believe that such Covered Person ultimately will be found entitled to indemnificationparty.

Indemnification of Trustees and Officers. The Trust Zenith shall indemnify each person who at any time serves as a Trustee or officer of and hold harmless the Trust (each a “Covered Person”), Indemnified Parties from and against all liabilities and expenses (including amounts paid in satisfaction of costs, damages, judgments, in compromiseattorney's fees, expenses, obligations and liabilities of whatsoever kind or nature, without limitation as fines and penaltiesto time, and expenses including reasonable attorneys’ and accountants’ fees) reasonably incurred amount or otherwise, which the Indemnified Parties may incur or sustain in connection with the defense or disposition of any actionclaim, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which he or she may be involved or with which he or she may be threatened, by reason of being or having been a Covered Person, except that no Covered Person shall be indemnified against any liability to the Trust or its Shareholders to which such Covered Person would otherwise be subject by reason of bad faith, willful misfeasance, gross negligence or reckless disregard of his duties involved in the conduct of such Covered Person’s office (such willful misfeasance, bad faith, gross negligence or reckless disregard being referred to herein as “Disabling Conduct”). Expenses, including attorneys’ and accountants’ fees so incurred by any such Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), may be paid from time to time by the Trust in advance of the final disposition of any such action, suit, proceeding or proceeding upon receipt investigation arising out of or pertaining to any action or omission in their capacity as trustee, fiduciary, officer, employee or agent of the Fund or RMG (including, without limitation, any which arise out of or relate to actions or omissions which relate to the Merger and the transactions contemplated by this Agreement); provided, however, that Zenith shall not be obligated to indemnify the Indemnified Parties if and to the extent that such costs, damages, judgments, attorney's fees, expenses, obligations or liabilities arise as a result of (a) an undertaking by or on behalf a violation of such Covered Person to repay amounts so paid to the Trust if it is ultimately determined that indemnification of such expenses is not authorized under this Article VIII and either criminal law resulting in a conviction, (b) such Covered Person provides security for such undertakingany deliberately dishonest or fraudulent act or omission, or (c) any act or omission committed in bad faith or with malicious purpose or constituting gross negligence, and, in the Trust is insured against losses case of any claim, action, suit, proceeding or investigation arising out of or pertaining to the Merger or any transaction contemplated by reason this Agreement or the Related Documents, Zenith shall not be obligated to indemnify the Indemnified Parties if and to the extent that all material aspects of the Merger and the transactions contemplated by this Agreement and the Related Documents were not fully described and disclosed in the Proxy Statement. At its option, Zenith may provide insurance policies of its choosing which insure and cover Zenith's obligation of indemnification to the Indemnified Parties as contained herein; provided, however, that the provision of such payment, or (d) a majority insurance polices by Zenith shall not relieve Zenith from its obligation of disinterested, non-party Trustees, or independent legal counsel in a written opinion, determines, based on a review of readily available factsindemnification to the Indemnified Parties; and provided further, that there is reason to believe that any deductibles required under any such Covered Person ultimately will insurance policies shall be found entitled to indemnificationthe sole responsibility of Zenith.