Common use of Instructions and Indemnification Clause in Contracts

Instructions and Indemnification. 13.1 The Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions: (a) The Agent shall be entitled to rely upon any written instructions or directions furnished to it by an executive officer of the Company, whether in conformity with the provisions of this Agreement or constituting a modification hereof or a supplement hereto. Without limiting the generality of the foregoing or any other provision of this Agreement, the Agent, in connection with its duties hereunder, shall not be under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any instruction or direction from an executive officer of the Company which conforms to the applicable requirements of this Agreement and which the Agent reasonably believes to be genuine and shall not be liable for any delays, errors or loss of data occurring by reason of circumstances beyond the Agent's control. (b) The Company also agrees to indemnify and hold the Agent harmless against any losses, claims, actions, damages, liabilities, costs or expenses (including reasonable fees and disbursements of legal counsel) (collectively, "Claims") that the Agent may incur or become subject to, arising from or out of any claim or liability resulting from actions taken as Agent pursuant to this Agreement; provided, however, that such covenant and agreement does not extend to, and the Agent shall not be indemnified or held harmless with respect to, such Claims incurred or suffered by the Agent as a result, or arising out, of the Agent's negligence, misconduct, bad faith or breach of this Agreement. In connection therewith: (i) in no case shall the Company be liable with respect to any Claim against the Agent unless the Agent shall have notified the Company in writing, of the assertion of a Claim against it, promptly after the Agent shall have notice of a Claim or shall have been served with the summons or other legal process giving information as to the nature and basis of the Claim; provided, however, that the failure of the Agent to notify the Company in the above manner will absolve the Company of liability only when such failure will result or has resulted in prejudice to the Company with respect to such Claim; (ii) the Company shall be entitled to control the defense of any suit brought to enforce any such Claim; and (iii) the Agent agrees not to settle or compromise any Claim with respect to which it may seek indemnification from the Company without the prior written consent of the Company. In no event shall the Company be liable for the fees and expenses of any additional counsel that the Agent may retain. (c) The Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it without negligence and in good faith in connection with its administration of this Agreement in reliance upon any Subscription Certificate, or written power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged by the proper person or persons.

Instructions and Indemnification. 13.1 The Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions: (a) The Agent shall be entitled to rely upon any written instructions or directions furnished to it by an executive officer of Xxxxxx X. XxXxxxxxx, the Company's Chairman and Chief Executive Officer, Xxxxx X. Xxxxx, the Company's General Counsel, or Xxxxxx X. Xxxx, the Company's Chief Financial Officer, or their designees (each, an "Authorizing Person"), whether in conformity with the provisions of this Agreement or constituting a modification hereof or a supplement hereto. Without limiting the generality of the foregoing or any other provision of this Agreement, the Agent, in connection with its duties hereunder, shall not be under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any instruction or direction from an executive officer Authorizing Person of the Company which conforms to the applicable requirements of this Agreement and which the Agent reasonably believes to be genuine and shall not be liable for any delays, errors or loss of data occurring by reason of circumstances beyond the Agent's control. (b) The Company also agrees to indemnify and hold the Agent harmless against any losses, claims, actions, damages, liabilities, costs or expenses (including reasonable fees and disbursements of legal counsel) (collectively, "Claims") that the Agent may incur or become subject to, arising from or out of any claim or liability resulting from actions taken as Agent pursuant to this Agreement; providedPROVIDED, howeverHOWEVER, that such covenant and agreement does not extend to, and the Agent shall not be indemnified or held harmless with respect to, such Claims incurred or suffered by the Agent as a result, or arising out, of the Agent's negligence, misconduct, bad faith or breach of this Agreement. In connection therewith: (i) in no case shall the Company be liable with respect to any Claim against the Agent unless the Agent shall have notified the Company in writing, writing of the assertion of a Claim against it, it promptly after the Agent shall have notice of a Claim or shall have been served with the summons or other legal process giving information as to the nature and basis of the Claim; providedPROVIDED, howeverHOWEVER, that the failure of the Agent to notify the Company in the above manner will absolve the Company of liability only when such failure will result or has resulted in prejudice to the Company with respect to such Claimclaim; (ii) the Company shall be entitled to control the defense of any suit brought to enforce any such Claim; and (iii) the Agent agrees not to settle or compromise any Claim with respect to which it may seek indemnification from the Company without the prior written consent of the Company. In no event shall the Company be liable for the fees and expenses of any additional counsel that the Agent may retain. (c) The Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it without negligence and in good faith in connection with its administration of this Agreement in reliance upon any Subscription Certificate, or written power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged by the proper person or persons.

Instructions and Indemnification. 13.1 The Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions: (a) The Agent shall be entitled to rely upon any written instructions or directions furnished to it by an executive appropriate officer of the Company, whether in conformity with the provisions of this Agreement or constituting a modification hereof or a supplement hereto. Without limiting the generality of the foregoing or any other provision of this Agreement, the Agent, in connection with its duties hereunder, shall not be under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any instruction or direction from an executive appropriate officer of the Company which conforms to the applicable requirements of this Agreement and which the Agent reasonably believes to be genuine and shall not be liable for any delays, errors or loss of data occurring by reason of circumstances beyond the Agent's control, including, without limitation, acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. (b) The Company also agrees to will indemnify the Agent for, and hold it harmless against, any liability and expense which may arise out of or in connection with the services described in this Agreement or the instructions or directions furnished to the Agent harmless against any losses, claims, actions, damages, liabilities, costs or expenses (including reasonable fees and disbursements of legal counsel) (collectively, "Claims") that the Agent may incur or become subject to, arising from or out of any claim or liability resulting from actions taken as Agent pursuant relating to this AgreementAgreement by an appropriate officer of the Company; provided, however, that such covenant and agreement does not extend to, and the Agent shall not be indemnified or held harmless with respect toto any liability or expense which shall arise out of, such Claims or be incurred or suffered by the Agent as a resultresult of, or arising out, of the Agent's negligence, misconductbad faith, bad faith misconduct or breach of this Agreement. In connection therewith: (i) in no case The Company shall not indemnify the Company be liable Agent with respect to any Claim against the claim or action settled without its consent, which consent shall not be unreasonably withheld. (c) The Agent unless the Agent shall have notified the Company in writing, of the assertion of a Claim against it, will promptly after the Agent shall have notice of a Claim or shall have been served with the summons or other legal process giving information as to the nature and basis of the Claim; provided, however, that the failure of the Agent to notify the Company in the above manner will absolve the Company of liability only when such failure will result or has resulted in prejudice to the Company any claim with respect to such Claim; (ii) the which it may seek indemnity hereunder. The Company shall be entitled to control participate at its own expense in the defense of any suit brought to enforce any such Claim; claim, and (iii) the Agent agrees not to settle or compromise any Claim with respect to which it may seek indemnification from if the Company without so elects, the prior written consent Company shall assume the defense of the Companyany such suit. In no the event shall that the Company assumes such defense, the Company shall not thereafter be liable for the fees and expenses of any additional counsel that the Agent may retainretains, so long as the Company shall retain counsel reasonably satisfactory to the Agent, to defend such suit. (c) The Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it without negligence and in good faith in connection with its administration of this Agreement in reliance upon any Subscription Certificate, or written power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged by the proper person or persons.

Instructions and Indemnification. 13.1 The Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions: (a) The Agent shall be entitled to rely upon any written instructions or directions furnished to it by an executive officer a President or Vice President of the CompanyFund, whether in conformity with the provisions of this Agreement or constituting a modification hereof or a supplement hereto. Without limiting the generality of the foregoing or any other provision of this Agreement, the Agent, in connection with its duties hereunder, shall not be under any duty or obligation to inquire into the validity or invalidity or authority or lack thereof of any instruction or direction from an executive officer of the Company Fund which conforms to the applicable requirements of this Agreement and which the Agent reasonably believes to be genuine and shall not be liable for any delays, errors or loss of data occurring by reason of circumstances beyond the Agent's control. (b) The Company also agrees Fund will indemnify the Agent and its nominees against, and hold it harmless from, all liability and expense which may arise out of or in connection with the services required by this Agreement or the instructions or directions furnished to the Agent relating to this Agreement by a President or Vice President of the Fund, except for any liability or expense which shall arise out of the negligence, bad faith or willful misconduct of the Agent or such nominees. In any case in which the Fund may be asked to indemnify and or hold the Agent harmless harmless, the Agent will notify the Fund promptly after identifying any situation which it believes presents or appears likely to present a claim for indemnification against the Fund, although the failure to do so shall not prevent recovery by the Agent, except to the extent the Fund is predjudiced by such failure to notify, and shall keep the Fund advised with respect to all developments concerning such situation. The Fund shall have the option to defend the Agent against any lossesclaim which may be the subject of this indemnification and, claims, actions, damages, liabilities, costs or expenses (including reasonable fees and disbursements of legal counsel) (collectively, "Claims") in the event that the Agent may incur or become subject toFund so elects, arising from or out such defense shall be conducted by counsel chosen by the Fund and satisfactory to the Agent, and thereupon the Fund shall take over complete defense of any the claim or liability resulting from actions taken as Agent pursuant to this Agreement; provided, however, that such covenant and agreement does not extend to, and the Agent shall sustain no further legal or other expenses in respect of such claim. The Agent will not confess any Claim or make any compromise in any case in which the Fund will be indemnified or held harmless asked to provide indemnification, except with respect to, such Claims incurred or suffered by the Agent as a result, or arising out, Fund's prior written consent. The obligations of the Agent's negligence, misconduct, bad faith or breach parties hereto under this Section 3(b) shall survive the termination of this Agreement. In connection therewith: (i) in no case shall the Company be liable with respect to any Claim against the Agent unless the Agent shall have notified the Company in writing, of the assertion of a Claim against it, promptly after the Agent shall have notice of a Claim or shall have been served with the summons or other legal process giving information as to the nature and basis of the Claim; provided, however, that the failure of the Agent to notify the Company in the above manner will absolve the Company of liability only when such failure will result or has resulted in prejudice to the Company with respect to such Claim; (ii) the Company shall be entitled to control the defense of any suit brought to enforce any such Claim; and (iii) the Agent agrees not to settle or compromise any Claim with respect to which it may seek indemnification from the Company without the prior written consent of the Company. In no event shall the Company be liable for the fees and expenses of any additional counsel that the Agent may retain. (c) The Agent shall be protected and shall incur no liability for or Notwithstanding any provision in respect of any action taken, suffered or omitted by it without negligence and in good faith in connection with its administration of this Agreement in reliance upon any Subscription Certificateto the contrary, except for the gross negligence or willful misconduct of Agent (or its subcontractors), Agent's cumulative liability (to the Fund) for all losses, claims, suits, controversies, breaches, or written power damages for any cause whatsoever arising out of attorneyor related to this Agreement and regardless of the form of action or legal theory shall not exceed two times the fees received by Agent for the services provided under this Agreement. In allocating risk under the Agreement, endorsementthe parties agree that the damage limitation set forth above shall apply to any alternative remedy ordered by a court in the event such court determines that sole and exclusive remedy provided for in the Agreement fails of its essential purpose. (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, affidavitIN NO EVENT SHALL AGENT, letterITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, noticeOFFICERS, directionEMPLOYEES, consentAGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, certificateCONTRACT, statement or other paper or document reasonably believed by it to be genuine and to be signedSTRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, executed andEXEMPLARY, where necessaryPUNITIVE, verified or acknowledged by the proper person or personsSPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.