Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position. b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust. c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty. d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty. e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder. f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (FS Series Trust), Investment Sub Advisory Agreement (FS Series Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify and hold harmless the Fund and Adviser, the Adviser and each of their respective trusteesTrust, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, the “Adviser Indemnitees”), against, from and hold them harmless from, against any and all claims, losses, claims, damages, liabilities, costs and expenses liabilities or damages (including, without limitation, including reasonable attorneys’ and accountants’ attorney’s fees and disbursementsother related expenses) (collectively, “Losses”) incurred by each reason of them in so far as such Losses (or actions with respect thereto) arise arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the Adviser’s willful misfeasance, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement hereunder or the its reckless disregard of its obligations or and duties hereunder; (iii) the failure of under this Agreement. The Adviser shall indemnify and hold harmless the Sub-Adviser and all affiliated persons thereof to executethe extent that any such party incurs actual losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) by reason of or arising out of the Adviser’s willful misfeasance, bad faith, or cause to be executed, portfolio investment transactions according to gross negligence in the requirements performance of applicable law, the Strategy, the Governing Documents its duties hereunder or the Procedures; (iv) as a result its reckless disregard of any failure by its obligations and duties under this Agreement. Neither the Sub-Adviser nor its directors, officers, employees, agents or controlling persons or assigns shall be liable for any error of judgment or mistake of law or for any loss suffered by the Trust, any Fund or its shareholders in connection with the matters to exercise the standard of care set forth in which this Agreement; or (v) any material breach of this AgreementAgreement relates; provided, however, that nothing in no provision of this Agreement shall be deemed to protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls against liability to the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless fromTrust, any and all Losses incurred by each of them in so far as such Losses (Fund or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication its shareholders to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained which it might otherwise be subject directly resulting from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its ’s own willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductfraud, bad faith or gross negligence in the performance of such personthe Sub-Adviser’s duties obligations under this Agreement or by reason of its reckless disregard of such person’s obligations and its duties under this Agreement. Notwithstanding anything to the contrary contained herein, no party to this Agreement, its affiliates or its affiliated persons shall be responsible or liable for its failure to perform under this Agreement or for any losses to the Assets resulting from any event beyond the reasonable control of such party or its agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, or any other similar event. In no event shall any party be responsible for incidental, consequential or punitive damages hereunder. The provisions of this Section shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Elevation Series Trust), Investment Sub Advisory Agreement (Elevation Series Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, Neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants shall not be liable for any act or omission in to the course ofAdviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) or any controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”)) for any claim, againstloss, and hold them harmless fromliability or damage suffered by a Fund Indemnitee in connection with the subject matter of this Agreement howsoever any such claim, any and all lossesloss, claimsliability or damage may have occurred unless such claim, damagesloss, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (liability or actions with respect thereto) arise out of or are based upon damage arises from the Sub-Adviser’s (i) any actual material misstatement own willful misfeasance, fraud, bad faith or omission in the Fund’s Registration Statement, any proxy statementgross negligence, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance reckless disregard of its duties under this Agreement or (ii) breach of fiduciary duty with respect to receipt of compensation for services, or as may otherwise be provided by the 1940 Act or under the provisions of other federal securities laws or applicable state law which cannot be waived or modified herein. The Sub-Adviser shall indemnify and hold harmless the Fund Indemnitees from and against any and all claims, losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) however arising from or in connection with the performance of the Sub-Adviser’s obligations under this Agreement to the extent resulting from or relating to Sub-Adviser’s own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its obligations duties under this Agreement. The Adviser shall indemnify and hold harmless the Sub-Adviser, its officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons thereof (as described in Section 15 of the Securities Act of 1933, as amended) from and against any and all claims, losses, liabilities or duties hereunder; damages (iiiincluding reasonable attorney’s fees and other related expenses) however arising from or in connection with this Agreement (including, without limitation, any claims of infringement or misappropriation of the failure intellectual property rights of a third party against the Sub-Adviser or any affiliated person relating to execute, any index or cause index data provided to be executed, portfolio investment transactions according to Sub-Adviser by the requirements of applicable law, the Strategy, the Governing Documents Adviser or the Procedures; (iv) as a result of any failure Adviser’s agent and used by the Sub-Adviser to exercise the standard of care set forth in connection with performing its duties under this Agreement; or (v) any material breach of this Agreement); provided, however, that nothing in the Adviser’s obligation under this Agreement Section 6 shall protect any Adviser Indemnitee against any liability be reduced to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify extent that the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), claim against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund loss, liability or damage experienced by the Sub-Adviser for inclusion in such documents); (ii) any action is caused by or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions is otherwise directly related to the Sub-Adviser; (iii) the ’s own willful misfeasance, fraud, bad faith, willful misconduct faith or gross negligence of negligence, or to the Adviser or the Fund in the performance reckless disregard of its duties under this Agreement or Agreement. Notwithstanding anything to the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser contrary contained herein, no party to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect be responsible or liable for its failure to perform under this Agreement or for any Sub- Adviser Indemnitee against losses to the Assets resulting from any liability to which event beyond the reasonable control of such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her party or its willful misfeasanceagents, bad faithincluding, gross negligence but not limited to, nationalization, expropriation, devaluation, seizure or reckless disregard similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of duty.
e. Promptly after receipt of notice currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any action, arbitration, claim, demand, dispute, investigation, lawsuit utilities or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) telecommunications systems; or 9(d) (any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) execution or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights transactions; or acts or war, terrorism, insurrection or revolution; or acts of indemnification provided in this section shall not be exclusive of God, or affect any other rights to which similar event. In no event, shall any person may party be entitled by contract responsible for incidental, consequential or otherwise by law, and punitive damages hereunder. The provisions of this Section shall not protect any person against any liability to which any such person would otherwise be subject by reason survive the termination of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Krane Shares Trust), Investment Sub Advisory Agreement (Krane Shares Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees employees, agents and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documentsdocuments where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; or (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedAgreement by the Sub-Adviser including without limitation the Strategy, however, that nothing Governing Documents or Procedures or any representation or warranty contained in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyAgreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholdersagents, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectivelyAct, the “Sub-Adviser Indemnitees”)from and against any Losses suffered or sustained in connection with this Agreement, against, and hold them harmless from, any and all Losses incurred by each of them in so far as provided that such Losses (or actions with respect thereto) arise out of or are based upon did not result from (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction documents where such disclosure was actually included in such documents in the form and context as provided by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iiiii) the bad faith, willful misconduct or gross negligence of by the Sub-Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (viii) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of hisincluding without limitation the Strategy, her Governing Documents or its willful misfeasance, bad faith, gross negligence Procedures or reckless disregard of dutyany representation or warranty contained in this Agreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (FS Series Trust), Investment Sub Advisory Agreement (FS Series Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this AgreementA. Lessee agrees that it will indemnify and hold harmless Lessor, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductits successors, bad faithassigns, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviseragents, or its officersemployees, contractors, partners, directors, partners, agents, employees officers and controlling persons, the Sub-Adviser shall not be liable for any act or omission affiliates (as that term is defined in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”)"Indemnified Parties") from and against all fines, againstsuits, and hold them harmless fromlosses, any and all lossescosts, liabilities, claims, damagesdemands, liabilitiesactions and judgments of every kind or character (a) arising from any breach, costs and expenses violation or non-performance of any term, provision, covenant, agreement or condition on the part of Lessee hereunder, (includingb) recovered from or asserted against any of the Indemnified Parties on account of injury or damage to person or property to the extent that any such damage or injury may be incident to, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of, or be caused, either proximately or remotely, wholly or in part, by any act, omission, negligence or misconduct on the part of Lessee or are based any of its agents, servants, employees, contractors, or invitees or of any other person entering upon the Premises under or with the express or implied invitation or permission of Lessee, (c) arising from or out of the occupancy or use by Lessee, its agents, servants, employees, contractors, or invitees of the Premises or arising from or out of any event, circumstance, or occurrence within the Premises, howsoever caused, and/or (d) suffered by, recovered from or asserted against any of the Indemnified Parties by Lessee's employees, agents, servants, contractors, or invitees. Such indemnification of the Indemnified Parties by Lessee shall be effective (i) unless such damage to property results from the gross negligence or willful misconduct of Lessor or any actual material misstatement of its duly authorized agents or omission in the Fund’s Registration Statementemployees, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; and (ii) unless such injury to person results from the bad faith, negligence or willful misconduct of Lessor or gross negligence by the Sub-Adviser in the performance any of its duties under this Agreement duly authorized agents or the reckless disregard of its obligations or duties hereunder; (iii) the failure employees.
B. Lessee covenants and agrees that in case any of the Sub-Adviser to execute, or cause to Indemnified Parties shall be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) any litigation commenced by or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Lessee with respect to which indemnity may Lessee has agreed to indemnify the Indemnified Parties hereunder or relating to this Lease or to the Premises, then Lessee shall and will pay all costs and expenses, including reasonable attorneys' fees and court costs, incurred by or imposed upon any of the Indemnified Parties by virtue of any such litigation and the amount of all such costs and expenses, including attorneys' fees and court costs, shall be sought hereundera demand obligation owing by Lessee to the Indemnified Parties.
f. C. The rights provisions of this Paragraph shall survive the expiration or termination of this Lease with respect to any claims or liability occurring prior to such expiration or termination. The indemnification provided in by this section shall not be exclusive Paragraph 11, is subject to Lessor's waiver of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence recovery in the performance preceding Paragraph 10., to the extent of such person’s duties or by reason Lessor's recovery of its reckless disregard loss proceeds under policies of such person’s obligations and duties under this Agreementinsurance described in Paragraph 10.
Appears in 2 contracts
Samples: Commercial Lease Agreement (Details Inc), Commercial Lease Agreement (Ddi Corp)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of indemnify and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify hold harmless the Fund and the Adviser and each of Trust, their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the Fund’s Registration Statement, performance of any proxy statement, of its duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
D. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Financial Investors Trust), Sub Advisory Agreement (Financial Investors Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the The Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder error of judgment or for any losses that may be sustained loss suffered by the Adviser in connection with the purchase, holding or sale performance of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation Adviser’s obligations under this Agreement, except a liability or loss resulting from the shareholders Sub-Adviser’s (i) willful misfeasance, bad faith, or negligence or its reckless disregard of the Fund nor from any other series its obligations and duties under this Agreement; or (ii) violation of the Trust law or any Trustees duty imposed by federal or officer, employee or agent of the Fund or other series of the Trust.
c. state law. The Sub-Adviser shall indemnify the Fund and hold harmless the Adviser and each of their respective trustees, members, officers, employees its affiliates from and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, against any and all claims, losses, claims, damages, liabilities, costs and expenses liabilities or damages (including, without limitation, including reasonable attorneys’ and accountants’ attorney’s fees and disbursementsother related expenses) (collectively, “Losses”) incurred by each of them arising from or in so far as such Losses (or actions connection with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the Adviser’s willful misfeasance, bad faith, willful misconduct negligence or gross negligence by the Sub-Adviser reckless disregard in the performance of its duties under this Agreement or the reckless disregard of its obligations or and duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in the Sub-Adviser’s obligation under this Agreement Paragraph 5 shall protect any be reduced to the extent that the claim against, or the loss, liability or damage experienced by the Adviser, is caused by or is otherwise directly related to the Adviser’s own willful misfeasance, bad faith or negligence, or to the reckless disregard of its duties under this Agreement. The Adviser Indemnitee shall indemnify and hold harmless the Sub-Adviser and its affiliates from and against any liability to which such Adviser Indemnitee would otherwise be subject by reason of hisand all claims, her losses, liabilities or its damages (including reasonable attorney’s fees and other related expenses) arising from or in connection with Adviser’s willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or and duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in the Adviser’s obligation under this Agreement Paragraph 5 shall protect any Sub- Adviser Indemnitee against any be reduced to the extent that the claim against, or the loss, liability to which such or damage experienced by the Sub-Adviser Indemnitee would Adviser, is caused by or is otherwise be subject by reason of his, her or its directly related to the Sub-Adviser’s own willful misfeasance, bad faithfaith or negligence, gross negligence or to the reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Sei Daily Income Trust /Ma/), Investment Sub Advisory Agreement (Sei Institutional Managed Trust)
Liability and Indemnification. a. Except To the extent permitted by applicable Florida and/or federal law, the Vendor and Fiscal Sponsor shall be liable as expressly set forth in Section 2(owell as indemnify, defend, release and hold harmless the Coalition and all of its officers, agents, members, directors and employees from all claims, suits, judgments, or damages, including attorneys’ fees (including all levels of appeal) and court costs and expenses, related to or arising out of this Agreementany actions, absent negligence and/or omissions of the Sub- Adviser’s material breach Vendor, Fiscal Sponsor, or if applicable, its agents, officers, subcontractors, members, directors, or employees during the performance or delivery of the Scope of Services and/or operation of this Agreement (including any subsequent modifications thereof), whether direct or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholdersindirect, and each personwhether to any person or tangible or intangible property, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ any and accountants’ fees and disbursements) (collectivelyall claims, “Losses”) incurred demands, or causes of action of any nature whatsoever resulting from injuries or damages sustained by each of them in so far as such Losses (any person or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in property. To the Fund’s Registration Statementextent considered necessary by the Coalition, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided sums due to the Adviser Vendor or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties Fiscal Sponsor under this Agreement or may be retained by the reckless disregard of its obligations or duties hereunder; (iii) the failure Coalition until all of the Sub-Adviser Coalition’s claims for indemnification pursuant to execute, this Agreement have been settled or cause otherwise resolved; and any amount withheld shall not be subject to payment of interest by the Coalition. Nothing herein shall be executed, portfolio investment transactions according construed to waive any sovereign immunity that may be applicable to the requirements Coalition pursuant to Florida and/or federal law. In the event the Vendor or Fiscal Sponsor utilizes subcontractor(s) to perform and/or deliver the Scope of applicable law, Services and the Strategy, subcontractor does not meet the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care definition set forth in this Agreement; Section 768.28(2), Florida Statutes, the Vendor or Fiscal Sponsor shall be responsible for ensuring that the subcontractors utilized by the Vendor or Fiscal Sponsor comply with the liability and indemnity requirements as set forth herein. This Section 13 (vLiability and Indemnification) any material breach shall survive the expiration or earlier termination of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Vendor Agreement, Vendor Agreement
Liability and Indemnification. a. A. The Adviser acknowledges that the Sub-Adviser does not guarantee investment results. Except as expressly set forth may otherwise be provided by law, neither the Sub-Adviser nor any of its managers, principals, directors, affiliates, agents, officers, members or employees (its “Affiliates”) shall be liable (i) for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser or the Trust as a result of any error of judgment, mistake of law or action performed or omitted to be performed in Section 2(omanaging the Fund by the Sub-Adviser or its Affiliates with respect to any Fund or (ii) for any failure to recommend the purchase or sale of this Agreementany security on behalf of any Fund on the basis of any information which might, absent in the Sub- Sub-Adviser’s material breach reasonable opinion, constitute a violation of any federal or state laws, rules or regulations; except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part liability of the Sub-Adviser, Adviser or its officersAffiliates for, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of indemnify and accepts the limitations upon the Fund’s liability set forth in hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, the “Adviser Indemnitees”), ) against, and hold them harmless from, any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe Investment Company Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise common law or otherwise arising out of or are based upon on (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the willful misconduct,bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or obligations hereunder or (ii) any untrue statement of a material fact contained in the reckless disregard of its obligations Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or duties hereunder; (iii) the failure of other materials pertaining to any Fund by the Sub-Adviser or the omission to execute, or cause state therein a material fact known to the Sub-Adviser which was required to be executedstated therein or necessary to make the statements therein not misleading, portfolio investment transactions according if such statement or omission was made in reliance upon information furnished to the requirements of applicable Adviser or the Trust by the Sub-Adviser Indemnitees (as defined below) for use therein.
B. Except as may otherwise be provided by law, the StrategyAdviser and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Governing Documents or the Procedures; (iv) Sub-Adviser as a result of any failure error of judgment or mistake of law by the Sub-Adviser with respect to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedFund, however, except that nothing in this Agreement shall protect operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of hisfor, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund Adviser shall indemnify and hold harmless the Sub-Adviser and each of its membersAdviser, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act 1933 Act) (collectively, the “Sub-Adviser Indemnitees”), ) against, and hold them harmless from, any and all Losses incurred by each losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses (the Sub-Adviser Indemnitees may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct reckless disregard or gross negligence of the Adviser or the Fund in the performance of any of its duties under this Agreement or obligations hereunder or (ii) any untrue statement of a material fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to any Fund or the reckless disregard of its obligations or duties hereunder; (iv) any failure by omission to state therein a material fact known to the Adviser that was required to exercise be stated therein or necessary to make the standard of care set forth statements therein not misleading, unless such statement or omission was made in this Agreement; or (v) any material breach of this Agreement by reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser.
C. The Sub-Adviser shall have no responsibility with respect to any assets of the Fund other than those of allocated to the Sub-Adviser by the Adviser. Without limiting the generality of the foregoing, neither the Fund nor any person claiming through, or on behalf of the Fund; provided, howeveror by right of the Fund, that nothing in this Agreement or any other person, shall protect seek to impose any Sub- liability on the Sub-Adviser Indemnitee against or any of its managers, members, principals, directors, officers, employees, affiliates, or agents, nor shall the Sub-Adviser or any of its managers, members, principals, directors, officers, employees, affiliates, or agents have any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason any person, arising out of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have due to the Indemnified Party; provided fact that such party is not materially prejudiced by such failure the Fund lacked the capacity or authority to notify. No Indemnifying Party shall be liable under this section for enter into any settlement of transaction, or to authorize or instruct Manager to enter into any Proceeding entered into without transaction on its consent with respect to which indemnity may be sought hereunderbehalf.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (JNL Series Trust), Investment Sub Advisory Agreement (JNL Series Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) Neither the Sub-Adviser nor its officers, directors, employees, affiliates, agents or controlling persons shall be liable to the Adviser, the Trust, a Fund, its shareholders and/or any other person for the acts, omissions, errors of this Agreementjudgment and/or mistakes of law of any other adviser, absent sub-Adviser, fiduciary and/or other person with respect to the Sub- Adviser’s material breach of this Agreement or Fund. The Adviser and the willful misconductTrust, bad faith, gross negligence or reckless disregard on behalf of the obligations or duties hereunder on the part of Funds, each, as applicable, hereby agrees to indemnify and hold harmless the Sub-Adviser, or its directors, officers, directorsemployees, partnersaffiliates, agents, employees agents and controlling personspersons (each an “Indemnified Party”) against any and all losses, the Sub-Adviser shall not be liable for any act claims, damages or omission in the course ofliabilities (including reasonable attorneys fees and expenses), joint or connected withseveral, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited relating to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of Agreement, the Trust or a Fund, to which any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of such Indemnified Party may become subject under the Securities Act of 1933, as amended (the “Securities Act”) (collectivelyamended, the “Adviser Indemnitees”)Securities Exchange Act of 1934, against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementAdvisers Act, or communication to current other federal or prospective investors in the Fund relating to disclosure provided to the Adviser state statutory law or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faithregulation, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable at common law, the Strategy, the Governing Documents through a civil suit or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedotherwise. It is understood, however, that nothing in this Agreement paragraph 11 shall protect any Adviser Indemnitee Indemnified Party against, or entitle any Indemnified Party to, indemnification against any liability to which such Adviser Indemnitee Indemnified Party would otherwise be subject by reason of hissubject, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each as a result of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties its duties, or by reason of its any reckless disregard of such personits obligations and duties under this Agreement. The indemnification in this Section 11 shall survive the termination of this Agreement. The Sub-Adviser shall indemnify each of the Adviser, the Trust and the Funds, and their respective directors, officers, employees, affiliates, agents and controlling persons against any and all losses, claims, damages or liabilities (including reasonable attorneys fees and expenses), arising from the Sub-Adviser’s willful misconduct, bad faith or gross negligence in the performance of its duties under this Agreement, or by any reason of any reckless disregard of its obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Symmetry Panoramic Trust), Investment Sub Advisory Agreement (Symmetry Panoramic Trust)
Liability and Indemnification. a. Except as expressly set forth AMICUS shall indemnify, defend and hold harmless MSSM and its trustees, officers, directors, medical and professional staff, employees, students and agents and their respective successors, heirs and assigns (the “Indemnitees”), against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in Section 2(oconnection with any claims, suits, actions, demands or judgments: (i) arising out of the production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by AMICUS or by a licensee, Affiliate or agent of AMICUS of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement, absent or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. AMICUS’s indemnification under subsection a(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the Sub- Advisernegligent activities of the Indemnitees. AMICUS’s material breach of this Agreement indemnification under subsection a(ii) above, shall not apply to any liability, damage, toss or expense to the willful misconduct, bad faithextent that it is attributable to the negligence, gross negligence or reckless disregard intentional misconduct of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustIndemnitees.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAMICUS shall, membersat its own expense, officers, employees and shareholders, and each person, if any, who controls the Fund provide attorneys reasonably acceptable to MSSM to defend against any actions brought or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, filed against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions party indemnified hereunder with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser subject of indemnity contained herein, whether or the Fund by the Sub-Adviser for inclusion in not such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyactions are rightfully brought.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its membersEXCEPT AS PROVIDED IN THIS SECTION 9, partnersNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, officersCONSEQUENTIAL, employees and shareholdersSPECIAL, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyEXEMPLARY OR PUNITIVE DAMAGES.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Licensing, Development, Manufacturing and Marketing Agreement, License and Collaboration Agreement (Amicus Therapeutics Inc)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the Investment Company Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence neither Sub-Adviser nor any of its officers, affiliates, employees or reckless disregard consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the obligations Sub-Adviser or duties hereunder on its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the part of the Investment Company Act or any other federal securities law, Investment Adviser shall indemnify and hold harmless Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by the of Sub-Adviser in the performance of any of its duties or obligations hereunder or (iii) any untrue statement of a material fact contained in the Prospectus or SAI, proxy materials, advertisements or sales literature, if such statement was made in reliance upon information furnished to Investment Adviser by Sub-Adviser in writing and intended for use therein.
C. Notwithstanding anything in this Agreement to the contrary contained herein, Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to Investment Adviser or the reckless disregard Trust resulting from any event beyond the reasonable control of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutysimilar event.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (IndexIQ Trust), Sub Advisory Agreement (IndexIQ ETF Trust)
Liability and Indemnification. a. Except as expressly set forth AMICUS shall indemnify, defend and hold harmless MSSM and its trustees, officers, directors, medical and professional staff, employees, students and agents and their respective successors, heirs and assigns (the "Indemnitees"), against any liability, damage, loss or expense (including reasonable attorneys' fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in Section 2(oconnection with any claims, suits, actions, demands or judgments: (i) arising out of the production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by AMICUS or by a licensee, Affiliate or agent of AMICUS of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement, absent or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. AMICUS's indemnification under subsection a(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the Sub- Adviser’s material breach negligent activities of this Agreement the Indemnitees. AMICUS's indemnification under subsection a (ii), above, shall not apply to any liability, damage, loss or expense to the willful misconduct, bad faithextent that it is attributable to the negligence, gross negligence or reckless disregard intentional misconduct of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustIndemnitees.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAMICUS shall, membersat its own expense, officers, employees and shareholders, and each person, if any, who controls the Fund provide attorneys reasonably acceptable to MSSM to defend against any actions brought or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, filed against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions party indemnified hereunder with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser subject of indemnity contained herein, whether or the Fund by the Sub-Adviser for inclusion in not such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyactions are rightfully brought.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its membersEXCEPT AS PROVIDED IN THIS SECTION 9, partnersNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, officersCONSEQUENTIAL, employees and shareholdersSPECIAL, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyEXEMPLARY OR PUNITIVE DAMAGES.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: License Agreement (Amicus Therapeutics Inc), License Agreement (Amicus Therapeutics Inc)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the each Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by a Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of a Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
D. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Sprott Funds Trust), Sub Advisory Agreement (Sprott Funds Trust)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the each Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by a Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of a Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
D. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Sprott Funds Trust), Sub Advisory Agreement (Sprott ETF Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) provided below, THIRD SECURITY and all of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, managing directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, agents and employees and shareholdersshall have no liability, and each personwhether direct or indirect, if anyin contract, who controls the Fund tort or the Adviser within the meaning of Section 15 of the Securities Act of 1933otherwise, as amended (the “Securities Act”) (collectivelyunder this Agreement for any damage, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses loss or other harm (including, without limitation, reasonable attorneys’ out-of-pocket expenses and accountants’ fees and disbursementsdisbursements of counsel) of any type suffered by NEW RIVER or any third party in connection with the performance or non-performance of this Agreement or the Services contemplated hereby or any action or in-action of any of the indemnified parties in connection with the foregoing, except for any such damage, loss or other harm directly caused by or directly resulting from the gross negligence or willful misconduct of THIRD SECURITY in connection with the performance or non-performance of this Agreement or the Services contemplated hereby or the action or inaction of any of the indemnified parties in connection with the foregoing. In the event of a third party claim, NEW RIVER, including its successors and assigns, for itself and on behalf of all of its subsidiaries, shall indemnify, defend and hold harmless THIRD SECURITY and all of its managing directors, officers, agents and employees from and against any and all such damages, losses and other xxxxx (collectivelyincluding, “Losses”without limitation, out-of-pocket expenses and fees, counsel fees and disbursements of counsel) incurred caused by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the performance or are based upon non-performance of this Agreement or the Services contemplated hereby or the actions or in-actions of any of the indemnified parties in connection with the foregoing other than any such damage, loss or other harm directly caused by or directly resulting from the gross negligence or willful misconduct of THIRD SECURITY in connection with the performance or non-performance of this Agreement or the Services contemplated hereby or the actions or in-actions of any of the indemnified parties in connection with the foregoing. The total liability of THIRD SECURITY under this Section 6 will not under any circumstances exceed the aggregate amount of actual fees paid to THIRD SECURITY by NEW RIVER pursuant to this Agreement. Notwithstanding any other provision of this Agreement, THIRD SECURITY shall have no liability for (i) any actual material misstatement lost profits or omission in any incidental, consequential, special, indirect or similar damages of any kind or nature whatsoever of NEW RIVER or any third party (including the Fund’s Registration Statement, any proxy statement, fees and expenses of counsel) or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct acts or gross negligence by omissions of any third party (other than THIRD SECURITY) that provides Services hereunder. This Section 6 shall survive the Sub-Adviser in the performance termination of its duties under this Agreement or until such time as the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; parties (ivincluding their respective successors and assigns) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutySection 6 have been fully satisfied.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Services Agreement (New River Pharmaceuticals Inc), Services Agreement (New River Pharmaceuticals Inc)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this AgreementExhibitor agrees to defend, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductindemnify and hold harmless National Safety Council and its affiliates, bad faithsubsidiaries, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserlicensee, or its distributors, officers, directors, partners, agents, employees employees, members and controlling personssuccessors and assigns, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of from and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, against any and all judgments, actions, fines, losses, claims, claims or damages, expenses or liabilities, costs and expenses including reasonable attorneys’ fees, arising out of: (i) Exhibitor’s construction or maintenance of an exhibit including any condition, defective or otherwise, of any apparatus, equipment or fixtures furnished by the Exhibitor in connection with its exhibit; (ii) any act, omission, negligence or willful misconduct of Exhibitor or its agents, (iii) any actual or alleged claims that any laws, rules or regulations were violated or any person or property was damaged or injured (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsdeath) (collectively, “Losses”) incurred by each of them at the Event or in so far as such Losses (or actions connection with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in activities associated with the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided Event due to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure actions of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her Exhibitor or its willful misfeasanceagent, bad faith, gross negligence whether direct or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderindirect; (iv) any failure by claim that the Adviser to exercise the standard of care set forth in this AgreementExhibitor Marks (defined below) misappropriate, violate or infringe any third party rights, including, without limitation, patents, copyrights, trademarks, service marks, trade names or domain names; or and/or (v) any material Exhibitor’s breach or alleged breach of this Agreement its agreements made hereunder, which indemnification obligations shall survive the expiration or termination of the Agreement. Exhibitor shall be fully responsible to pay for any and all damages to property owned by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding Conference Venue (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”defined below), the Indemnified Party willits owners or managers, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party which results from any indemnification liability which it may have act or omission of Exhibitor. The Exhibitor assumes the entire responsibility for and hereby agrees to protect, indemnify, defend and hold harmless the Indemnified Party; provided that such party is not materially prejudiced by such failure National Safety Council, Global Experience Specialists, Inc. and the San Diego Convention Center Corporation Inc., City of San Diego, San Diego Unified Port District, and the members, officers directors, agents and employees of each of these three are named as additional insured against all claims, charges, losses and damages to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive persons or property, governmental charges or fines and attorney’s fees arising out of or affect any other rights to which any person may be entitled caused by contract the Exhibitor, or otherwise by lawtheir employees’ or agents’ installation, and removal, maintenance, occupancy or use of exhibit premises or a part thereof. Exhibitor’s liability shall not protect any person against any liability to which any such person would otherwise be subject by reason include all losses, costs, damages, or expenses arising from or out of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of any accident or bodily injury or other occurrences to any person or persons, including the Exhibitor, its reckless disregard agents, employees, and business invitees which arise from or out of the Exhibitor’s occupancy and use of the exhibition premises, the hotel or any part thereof. The Exhibitor expressly releases National Safety Council and all aforementioned individuals from any and all claims for such personloss, damage or injury. National Safety Council shall not be responsible for the security of Exhibitor’s obligations equipment or proprietary software or hardware information. This limitation of liability applies to equipment for use in the exhibit area, general session, conference sessions, and duties any other conference rooms or facilities. It is Exhibitor’s responsibility to maintain proper insurance coverage for its property and liability. Further, in no event shall National Safety Council be liable to exhibitor for any special, indirect, reliance, incidental or consequential damages of any kind, lost or damaged data, lost profits or lost revenue, whether arising in contract, tort, (including negligence), or otherwise, even if National Safety Council has been notified of the possibility thereof. Under no circumstances will National Safety Council aggregate liability for all claims arising under or relating to this Agreementagreement, regardless of the forum and regardless of the weather any action or claim is based on contract, tort, or otherwise, exceed one thousand dollars ($1,000). This limitation of liability is cumulative and not per incident.
Appears in 2 contracts
Samples: Exhibit Space Application & Agreement, Exhibit Space Application & Agreement
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the obligations Investment Adviser, the Fund or duties hereunder on the part Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion of a Sub-Adviser representation or warranty made in such documents; this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement Agreement, or the reckless disregard of its obligations or duties hereunder; (iii) the failure any untrue statement of the Sub-Adviser to executea material fact contained in a Fund’s Prospectus or Statement of Additional Information, proxy materials, advertisements or cause to be executedsales literature, portfolio investment transactions according if such statement was made in reliance upon information furnished to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure Investment Adviser by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would writing and intended for use therein.
C. Except as may otherwise be subject provided by reason of histhe 1940 Act or any other federal securities law, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The the Investment Adviser and the Fund shall indemnify the Sub-Adviser shall each, severally and each of its membersnot jointly, partnersindemnify and hold harmless the Fund and the Trust, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the “Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser Indemnitees”)shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, againstincluding but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and hold them harmless frommarket conditions affecting the execution or settlement of transactions; or acts of war, any and all Losses incurred by each terrorism, insurrection or revolution; or acts of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
E. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement (Financial Investors Trust), Sub Advisory Agreement (Financial Investors Trust)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Advisergross negligence, or its officers, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including reasonable legal and other expenses) incurred or suffered by the course ofInvestment Adviser, the Fund or connected with, rendering services hereunder the Trust as a result of any error of judgment or for any losses that may be sustained action or inaction taken in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that good faith by the Sub-Adviser shall not seek satisfaction of any such obligation from or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the shareholders of the Fund nor from 1940 Act or any other series of federal securities law, the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Investment Adviser shall indemnify and hold harmless the Fund and the Adviser and each of their respective trusteesSub- Adviser, its members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Sub- Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub- Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion of a Sub-Adviser representation or warranty made in such documents; this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement Agreement, or the reckless disregard of its obligations or duties hereunder; (iii) the failure any untrue statement of the Sub-Adviser to executea material fact contained in a Fund’s Prospectus or Statement of Additional Information, proxy materials, advertisements or cause to be executedsales literature, portfolio investment transactions according if such statement was made in reliance upon information furnished to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure Investment Adviser by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would writing and intended for use therein.
C. Except as may otherwise be subject provided by reason of histhe 1940 Act or any other federal securities law, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The the Investment Adviser and the Fund shall indemnify the Sub-Adviser shall each, severally and each of its membersnot jointly, partnersindemnify and hold harmless the Fund and the Trust, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the “Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser Indemnitees”)shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, againstincluding but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and hold them harmless frommarket conditions affecting the execution or settlement of transactions; or acts of war, any and all Losses incurred by each terrorism, insurrection or revolution; or acts of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
E. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Interim Sub Advisory Agreement (Financial Investors Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) may otherwise be provided by the Investment Company Act or other federal securities law, neither the Subadviser nor any of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, members or employees and controlling persons, the Sub-Adviser (its "Affiliates") shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-Adviser acknowledges error of judgment or mistake of law by the Subadviser or its Affiliates with respect to the Series, except that it has received notice of and accepts nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Subadviser or its Affiliates for, and the Subadviser agrees to indemnify and hold harmless the assets Manager, any affiliated person of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, Manager and each person, if any, who controls the Fund or the Adviser who, within the meaning of Section 15 of the Securities Act of 1933, as amended 1933 (the “Securities "1933 Act”) (collectively, the “Adviser Indemnitees”"), againstcontrols ("controlling person") the Manager, and hold them harmless from, against any and all losses, claims, claims damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses (includingto which the Manager or such affiliated person or controlling person may become subject under the 1933 Act, without limitationthe Investment Company Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise under any other statute, at common law or otherwise, arising out of or are based upon (i) on any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser Subadviser, any of the Subadviser's employees or representatives or any affiliate of or any person acting on behalf of the Subadviser in the performance of its duties under this Agreement or obligations hereunder. In no case shall the reckless disregard of its obligations or duties hereunder; (iii) the failure Subadviser's indemnity in favor of the Sub-Adviser to execute, Manager or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents any affiliated person or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 controlling person of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementManager, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence provision of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall be deemed to protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s its duties or by reason of its reckless disregard of such person’s its obligations and duties under this Agreement. Except as may otherwise be provided by the Investment Company Act or other federal securities law, neither the Manager nor any of its officers, members or employees (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Subadviser as a result of any error of judgment or mistake of law by the Manager or its Affiliates with respect to the Series, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Manager or its Affiliates for, and the Manager agrees to indemnify and hold harmless the Subadviser and any affiliated person or controlling person of the Subadviser against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses), to which the Subadviser or such affiliated person or controlling person may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or under any other statute, at common law or otherwise, arising out of or based on any willful misconduct, bad faith, or gross negligence by the Manager, any of the Manager's employees or representatives or any affiliate of or any person acting on behalf of the Manager in the performance of its duties or obligations hereunder. In no case shall the Manager's indemnity in favor of the Subadviser or any affiliated person or controlling person of the Subadviser, or any other provision of this Agreement, be deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Promptly after receipt by an indemnified party under this Section 12 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section12, notify the indemnifying party of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from liability which it may have to any indemnified party otherwise than under this Section 12. In case any such action is brought against any indemnified party, and it notified the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish and unless the indemnified party releases the indemnifying party from any further obligations under this Section 12 in connection with that action, assume the defense thereof, with counsel satisfactory to such indemnified party. After notice from the indemnifying party of its intention to assume the defense of an action, the indemnified party shall bear the expenses of any additional counsel obtained by it, and the indemnifying party shall not be liable to such indemnified party under this section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER CLARUS NOR ANY OF THE REPRESENTED CARRIERS SHALL BE LIABLE TO INDEPENDENT AGENT FOR DAMAGES OF ANY KIND RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE INTERRUPTION OF SERVICE OR THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. NEITHER CLARUS NOR ANY OF THE REPRESENTED CARRIERS WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND, OR FOR LOST PROFITS OR OTHER ECONOMIC LOSS, WHETHER OR NOT INDEPENDENT AGENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR ANY PUNITIVE DAMAGES, BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE PURSUANT TO OR UNDER THIS AGREEMENT.
b. Independent Agent shall defend, indemnify and hold CLARUS and Represented Carriers harmless from all suits, claims, demands, costs, expenses, losses, damages, fines and penalties of any kind (including reasonable attorneys' fees) resulting from, arising out of or in Section 2(o) any way connected with any breach by Independent Agent of this Agreement, absent any of the Sub- Adviser’s material breach terms of this Agreement or the willful misconduct, bad faith, gross negligence any negligent act or reckless disregard of the obligations omission or duties hereunder other misconduct on the part of the Sub-Adviser, Independent Agent or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits directors, officers, employees and shareholdersemployees, and each person, if any, who controls the Fund agents or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyindependent contractors.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Independent Agent Agreement
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser Proxy Holder shall not be liable for to any act person with respect to any action taken or omission in omitted to be taken by the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Proxy Holder pursuant to this Agreement and Declaration the Proxy or any matter arising out of Trust, as amended. The Sub-Adviser agrees that any of or in connection with this Agreement and the Fund’s obligations shall be limited Proxy except to the assets of the Fund and extent that, with respect to claims or actions asserted or initiated against Proxy Holder by such person, a court having competent jurisdiction shall have determined by final judgment (not subject to further appeal) that the Sub-Adviser shall not seek satisfaction of any such obligation liability resulted from the shareholders gross negligence or wilful misconduct of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser Proxy Holder. Grantor shall indemnify the Fund and the Adviser hold harmless and each of reimburse Proxy Holder, its affiliates and their respective trustees, membersdirectors, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless agents from, against and for any and all losses, liabilities, claims, damagesdamages and expenses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ ' fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under connection with this Agreement or the reckless disregard Proxy, including any amount paid in settlement of its obligations any litigation or duties hereunder; other action (iiicommenced or threatened) the failure of the Sub-Adviser to execute, or cause which Grantor shall have consented in writing (such consent not to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreementunreasonably withheld); provided, however, that nothing Grantor shall not be liable hereunder in this Agreement respect of any loss, liability, claim, damage or expense to the extent that a court having competent jurisdiction shall protect any Adviser Indemnitee against any liability have determined by final judgment (not subject to which further appeal) that such Adviser Indemnitee would otherwise be subject by reason of hisloss, her liability, claim, damage or its willful misfeasance, bad faith, expense resulted from the gross negligence or reckless disregard wilful misconduct of dutyProxy Holder.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth is otherwise required by the 1940 Act, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits principals, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Investment Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Investment Adviser Indemnitees may become subject at common law or otherwise, costs due to the Sub-Adviser’s willful misconduct, bad faith, fraud, reckless disregard, or gross negligence; provided however, the Sub-Adviser shall not indemnify or hold harmless the Investment Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and expenses other expenses) due to (includingi) any breach by the Investment Adviser of a representation or warranty made herein or (ii) any willful misconduct, without limitationbad faith, reasonable attorneys’ fraud, reckless disregard or gross negligence of the Investment Adviser in the performance of any of its duties or obligations hereunder.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and accountants’ fees hold harmless the Sub-Adviser and disbursementsits managers, officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “LossesSub-Adviser Indemnitees”) incurred by each against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses the Sub-Adviser Indemnitees may become subject at common law or otherwise, due to the Investment Adviser’s willful misconduct, bad faith, fraud, reckless disregard or gross negligence; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (or actions with respect theretoincluding reasonable legal and other expenses) arise out of or are based upon due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a representation or warranty made herein or (ii) the any willful misconduct, bad faith, willful misconduct fraud, reckless disregard or gross negligence by the of Sub-Adviser in the performance of any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub- Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub- Adviser or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event.
E. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iii) the failure expenses incurred by, or contracted for under this Agreement.
F. Nothing in this Agreement shall exclude or restrict any duty or liability of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Investment Adviser or the Fund by Trust under the Sub-Adviser for inclusion in such documents); regulatory system (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund defined in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyFCA Rules).
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the Investment Company Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence and breach of fiduciary duty, neither Sub-Adviser nor any of its officers, affiliates, employees or reckless disregard consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by Investment Adviser or the Fund as a result of any error of judgment or for any action or inaction taken in good faith by the obligations Sub-Adviser or duties hereunder on its Affiliates with respect to the part of Fund.
B. Except as may otherwise be provided by the Investment Company Act or any other federal securities law, Investment Adviser shall indemnify and hold harmless Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of AMECURRENT 705557027.5 24-Apr-13 12:06 the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by the of, or breach of fiduciary duty by, Sub-Adviser in the performance of any of its duties or obligations hereunder or (iii) any untrue statement of a material fact contained in the Registration Statement, proxy materials, advertisements or sales literature, if such statement was made in reliance upon information furnished to Investment Adviser by Sub-Adviser in writing and intended for use therein.
C. Notwithstanding anything in this Agreement to the contrary contained herein, Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to Investment Adviser or the reckless disregard Fund resulting from any event beyond the reasonable control of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents de facto or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementde jure; or (v) enactment, promulgation, imposition or enforcement by any material breach such governmental authority of this Agreement; providedcurrency restrictions, howeverexchange controls, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her levies or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in other charges affecting the Fund’s Registration Statementproperty; or the breakdown, failure or malfunction of any proxy statementutilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the similar event. Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under shall at all times while this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth is in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyeffect have adopted and instituted commercially reasonable business continuity and disaster recovery policies and procedures.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Principal Real Estate Income Fund)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent The BROKER agrees to be liable to the Sub- Adviser’s material Company for any breach of this Agreement Contract. The BROKER agrees to indemnify and hold harmless Company, its directors, officers and employees against all claims, suits, proceedings, demands, actions of any nature, damages, judgment, penalties, fines, costs, expenses, and fees, including but not limited to reasonable legal expenses, which are suffered or incurred by the willful misconductCompany and which are arising out of, bad faith, gross negligence directly or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserindirectly, or in connection with any negligent or intentional act or omissions or breach of this Contract, or any other agreement delivered pursuant to this Contract, by the BROKER, its officers, directors and employees. The Company agrees to indemnify and hold harmless the BROKER, its directors, officers and employees against all claims, suits, proceedings, demands, actions of any nature, damages, judgment, penalties, fines, costs, expenses, and fees, including but not limited to reasonable legal expenses, which are suffered or incurred by the BROKER and which are arising out of, directly or indirectly, or in connection with any negligent or intentional act or omissions or breach of this Contract, or any other agreement delivered pursuant to this Contract, by the Company, its officers, directors, partnersand employees. Without limiting the generality of the foregoing and without restricting its legal recourses against the BROKER, agents, employees and controlling personsif after an internal investigation the Company determines that the BROKER has committed an error or an omission or has been negligent in the handling of a Client’s file, the Sub-Adviser Company shall not be liable for any act inform the AGENCY and the BROKER forthwith and seek their input in determining acceptable corrective measures. In the event that the Company choses, at its own discretion, to indemnify the Client by reimbursing the premiums paid, in whole or omission in part, it may claim from the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited BROKER an indemnification equal to the assets of total sum reimbursed to that Client, up to a maximum amount representing the Fund total amount paid by the Company to the BROKER as commissions and bonuses for the products sold to the Client for the total duration that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trustpolicy has been in force.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Broker Contract
Liability and Indemnification. a. Except as expressly set forth None of the Servicer, the Sub- Servicer, the Special Servicer, the Trustee, the Note Administrator, the Operating Advisor nor their Affiliates nor any of the managers, members, directors, officers, employees or agents thereof shall be under any liability to either the Issuer or the Co-Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, in Section 2(o) of good faith pursuant to or in connection with this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductfor errors in judgment; provided, bad faithhowever, gross negligence or reckless disregard that none of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsServicer, the Sub-Adviser shall not be liable for any act Servicer, the Special Servicer, the Note Administrator, the Trustee or omission in the course of, Operating Advisor or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders Person will be protected against any breach of the Fund nor from any other series of the Trust its representations or warranties (if any) made in this Agreement or any Trustees liability that would otherwise be imposed by reason of willful misfeasance, bad faith or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of . The Servicer, the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable lawServicer, the StrategySpecial Servicer, the Governing Documents Note Administrator, the Trustee or the Procedures; (iv) Operating Advisor, as a result the case may be, and any director, officer, manager, member, employee or agent thereof may rely in good faith on any document of any failure kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the Sub-Adviser Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, and any member, manager, director, officer, employee or agent thereof shall be indemnified and held harmless by the Issuer and the Co-Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of such indemnity, in connection with any claim, legal action, investigation or proceeding relating to exercise the standard of care set forth in this Agreement; , the performance hereunder by, or (v) any material breach of specific action which the Issuer, the Co-Issuer, the Subordinate Class Representative, any Directing Holder, the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor authorized, requested or advised the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, to perform pursuant to this Agreement; provided, howeveras such are incurred, that nothing in this Agreement shall protect except for any Adviser Indemnitee against any loss, liability to which such Adviser Indemnitee would otherwise be subject or expense incurred by reason of his, her or its the willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of the duties of the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s, the Trustee’s or the Operating Advisor’s, as the case may be, representations and warranties set forth in Section 7.01. Any such person’s duties indemnification shall be payable from any amounts on deposit in the Collection Account (other than in the case of the Note Administrator and the Trustee) and pursuant to the Priority of Payments under the Indenture. In the event that the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Commercial Real Estate Loans, to the extent that such overcharges were collected by reason of its reckless disregard of the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer shall promptly remit such person’s obligations and duties under this Agreementovercharge to the related 00000000.
Appears in 1 contract
Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)
Liability and Indemnification. a. Except as expressly set forth (a) North Track shall indemnify and hold Administrator and its controlling persons, if any, harmless from any and all claims, actions, suits, losses, costs, damages, and expenses, including reasonable expenses for counsel, incurred by it in Section 2(o) connection with its acceptance of this Agreement, absent the Sub- Adviser’s material breach of this Agreement in connection with any action or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, omission by it or its officers, directors, partnersemployees, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser hereunder to executeNorth Track, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of acting upon any failure instruction believed by the Sub-Adviser it to exercise the standard have been executed by a duly authorized agent of care set forth North Track or as a result of acting upon information provided by North Track in this Agreement; or (v) any material breach of this Agreementform and under policies agreed to by Administrator and North Track; provided, however, that nothing in (i) to the extent such claims, actions, suits, losses, costs, damages, or expenses relate solely to one or more Funds, such indemnification shall be only out of the assets of that Fund or group of Funds; (ii) this Agreement indemnification shall protect any Adviser Indemnitee against any liability not apply to which such Adviser Indemnitee would otherwise be subject by reason actions or omissions constituting negligence or misconduct on the part of his, her Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give North Track prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, North Track shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
(b) Administrator shall indemnify and hold harmless North Track from and against any and all claims, demands, expenses, and liabilities which North Track may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of North Track, or its other agents or contractors, and (ii) North Track shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of North Track In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth None of the Servicer, the Special Servicer, the Trustee, the Note Administrator, the Operating Advisor nor their Affiliates nor any of the managers, members, directors, officers, employees or agents thereof shall be under any liability to either the Issuer or the Co-Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, in Section 2(o) of good faith pursuant to or in connection with this Agreement, absent or for errors in judgment; provided, however, that none of the Sub- Adviser’s material Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor or any such Person will be protected against any breach of its representations or warranties (if any) made in this Agreement or the any liability that would otherwise be imposed by reason of willful misconductmisfeasance, bad faithfaith or negligence in the performance of its duties hereunder. The Servicer, gross negligence the Special Servicer, the Note Administrator, the Trustee or reckless disregard the Operating Advisor, as the case may be, and any director, officer, manager, member, employee or agent thereof may rely in good faith on any document of the obligations or duties hereunder on the part of the Sub-Adviserany kind which, or its officersprima facie, directors, partners, agents, employees is properly executed and controlling personssubmitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the Sub-Adviser shall not be liable for any act Servicer, the Special Servicer, the Note Administrator, the Trustee or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of TrustOperating Advisor, as amended. The Sub-Adviser agrees that the case may be, and any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or member, manager, director, officer, employee or agent thereof shall be indemnified and held harmless by the Issuer and the Co-Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of such indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Co-Issuer, the Subordinate Class Representative, any Directing Holder, the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor authorized, requested or advised the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of the Fund willful misfeasance, bad faith, or negligence in the performance of the duties of the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s, the Trustee’s or the Operating Advisor’s, as the case may be, representations and warranties set forth in Section 7.01. Any such indemnification shall be payable from any amounts on deposit in the Collection Account (other than in the case of the Note Administrator and the Trustee) and pursuant to the Priority of Payments under the Indenture. In the event that the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Mortgage Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer shall promptly remit such overcharge to the related Obligor or other series Obligors after the Issuer’s receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of this indemnity, by reason of (i) the willful misfeasance, bad faith or negligence in the performance of the Trust.
c. The Sub-Adviser duties of the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor, as applicable, hereunder or (ii) a breach of the representations and warranties of the Servicer, the Special Servicer or the Operating Advisor set forth in Section 7.01. Each of the Servicer and the Special Servicer, severally and not jointly, shall indemnify and hold harmless each of the Fund Trustee and the Adviser Note Administrator from and each of their respective trusteesagainst any claims, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilitiespenalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far the Trustee or the Note Administrator, as such Losses (or actions with respect thereto) the case may be, that arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, fraud or willful misconduct on the part of the Servicer or gross negligence by the Sub-Adviser Special Servicer, as the case may be, in the performance of its duties obligations under this Agreement or the reckless its negligent disregard of its obligations or and duties hereunder; (iii) the failure under this Agreement. Each of the Sub-Adviser to executeTrustee and the Note Administrator, or cause to be executedseverally and not jointly, portfolio investment transactions according to shall indemnify and hold harmless each of the requirements Servicer and the Special Servicer from and against any claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of applicable lawenforcing this indemnity, and related costs, judgments and other costs and expenses incurred by the Strategy, the Governing Documents Servicer or the Procedures; (iv) Special Servicer, as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, howevercase may be, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, fraud or willful misconduct or gross negligence on the part of the Adviser Trustee or the Fund Note Administrator, as the case may be, in the performance of its obligations under this Agreement or the Indenture or its negligent disregard of its obligations and duties under this Agreement or the reckless disregard Indenture. Each of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)Servicer, the Indemnified Party will, if a claim in respect thereof is to Special Servicer and the Operating Advisor shall be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have entitled to the Indemnified Partysame rights, protections, immunities and indemnities afforded to each herein in connection with any matter contained in the Indenture. Neither the Servicer nor the Special Servicer shall be responsible for any delay or failure in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war); provided that such party delay or failure is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement also a result of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductown negligence, bad faith or gross negligence willful misconduct. Additionally, neither the Servicer nor the Special Servicer shall be liable for the actions or omissions of the Issuer, the Co-Issuer, the Directing Holder, the Trustee, the Note Administrator, the Servicer (in the performance case of such person’s duties the Special Servicer), the Special Servicer (in the case of the Servicer), and without limiting the foregoing, neither the Servicer nor the Special Servicer shall be under any obligation to verify compliance by any party hereto with the terms of the Indenture (other than itself) or to verify or independently determine the accuracy of information received by reason it from the Trustee or Note Administrator (or from any selling institution, agent bank, trustee or similar source) with respect to the Mortgage Loans or Mortgage Assets. The provisions of its reckless disregard this Section shall survive any termination of such person’s the rights and obligations and duties under this Agreementof the Servicer, the Special Servicer, the Note Administrator, the Trustee or the Operating Advisor hereunder.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(oThe Sellers shall indemnify, defend (upon request) of this Agreementand hold harmless Purchaser, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductits officers, bad faithemployees, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Advisermembers, or its affiliates (and their respective officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders), and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) agents (collectively, the “Adviser Indemnitees”)"Indemnified Parties") from and against any action, againstloss, and hold them harmless fromliability, any and all lossesdamage, claimsclaim, damagesfine, liabilitiespenalty, costs and expenses (includinglien or expense, without limitationincluding legal costs, reasonable attorneys’ ' fees, and accountants’ fees and disbursements) expenses, (collectively, “Losses”"Loss") incurred by each of them in so far as such Losses (or actions with respect thereto) arise to the extent the same arises out of or are based upon (i) any actual material misstatement or omission in breach by any of the Fund’s Registration StatementSellers of any representation, any proxy statementwarranty, agreement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund covenant made by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each either of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statementherein, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action tax, including use or inaction by sales tax, for which Sellers is or may be liable in respect of the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions Acquired IP prior to the Sub-Adviser; date hereof or the sale hereunder, or (iii) any claim arising out of or in connection with the bad faithAcquired IP prior to the date hereof.
b. Each Indemnified Party will give prompt notice to the Sellers of any claim or condition to which the foregoing indemnification covenant relates, within 7 business days of becoming aware of the same. The Sellers shall have the right to participate in the defense of such claim, at their expense with counsel of its choice, but the respective Indemnified Party or Parties shall retain the right at all times to control the defense of such claims and in no event shall the Sellers settle any such claim without the consent of the respective Indemnified Party or Parties.
c. Notwithstanding anything to the contrary stated herein or otherwise, and to the extent permissible under any mandatory law or regulation, the Sellers' liability and indemnification obligations hereunder shall not exceed NIS100,000, being the amount equal to the initial value of the Shares issued to them as consideration for the sale of the Acquired IP hereunder, except in the event of fraud or willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutySellers.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Infinity Augmented Reality, Inc.)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser nor any of its directors, officers, affiliates, employees or consultants (its “Affiliates”) shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including reasonable legal and other expenses) incurred or suffered by the course ofInvestment Adviser, the Portfolio or connected with, rendering services hereunder the Trust as a result of any error of judgment or for any losses that may be sustained action or inaction taken in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that good faith by the Sub-Adviser shall not seek satisfaction of any such obligation from or its Affiliates with respect to each Portfolio.
B. Except as may otherwise be provided by the shareholders of the Fund nor from 1940 Act or any other series of federal securities law, the Portfolio and the Trust or any Trustees or officer, employee or agent of shall indemnify and hold harmless the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser its Affiliates and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (amended) of any of the “Securities Act”) foregoing (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s performance under this Agreement; provided however, the Portfolio and the Trust shall not indemnify or are based upon hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein or (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or obligations hereunder.
C. Except as may otherwise be provided by the reckless disregard of its obligations 1940 Act or duties hereunder; (iii) the failure of any other federal securities law, the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to shall indemnify and hold harmless the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser Portfolio and the Fund shall indemnify the Sub-Adviser and each of its membersTrust, partners, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the “Sub-Adviser Portfolio Indemnitees”), against, and hold them harmless from, ) against any and all Losses incurred by each losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses (the Portfolio Indemnitees may become subject at common law or actions with respect thereto) arise otherwise, arising out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of ’s willful misconduct, bad faith or gross negligence; provided however, the Sub-Adviser shall not indemnify or hold harmless the Portfolio Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Portfolio or the Trust of a Portfolio representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Portfolio or Trust in the performance of such person’s any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to nationalization, expropriation, devaluation, seizure or similar action by reason any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of its reckless disregard currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of such person’s any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God or any other similar event.
E. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations and duties or expenses incurred by, or contracted for under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (ALPS Variable Investment Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this AgreementExhibitor agrees to defend, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductindemnify and hold harmless National Safety Council and its affiliates, bad faithsubsidiaries, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserlicensee, or its distributors, officers, directors, partners, agents, employees employees, members and controlling personssuccessors and assigns, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of from and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, against any and all judgments, actions, fines, losses, claims, claims or damages, expenses or liabilities, costs and expenses including reasonable attorneys’ fees, arising out of: (i) Exhibitor’s construction or maintenance of an exhibit including any condition, defective or otherwise, of any apparatus, equipment or fixtures furnished by the Exhibitor in connection with its exhibit; (ii) any act, omission, negligence or willful misconduct of Exhibitor or its agents, (iii) any actual or alleged claims that any laws, rules or regulations were violated or any person or property was damaged or injured (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsdeath) (collectively, “Losses”) incurred by each of them at the Event or in so far as such Losses (or actions connection with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in activities associated with the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided Event due to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure actions of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her Exhibitor or its willful misfeasanceagent, bad faith, gross negligence whether direct or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunderindirect; (iv) any failure by claim that the Adviser to exercise the standard of care set forth in this AgreementExhibitor Marks (defined below) misappropriate, violate or infringe any third party rights, including, without limitation, patents, copyrights, trademarks, service marks, trade names or domain names; or and/or (v) any material Exhibitor’s breach or alleged breach of this Agreement its agreements made hereunder, which indemnification obligations shall survive the expiration or termination of the Agreement. Exhibitor shall be fully responsible to pay for any and all damages to property owned by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding Conference Venue (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”defined below), its owners or managers, which results from any act or omission of Exhibitor. The Exhibitor assumes the Indemnified Party willentire responsibility for and hereby agrees to protect, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (indemnify, defend and hold harmless the “Indemnifying Party”) notify National Safety Council, GES and the Indemnifying Party in writing of the commencement of such Proceeding; provided thatASM Global Parent, Inc., the failure City & County of Denver, and their respective officers, agents, employees, assigns, and contractor of these three are named as additional insured against all claims, charges, losses and damages to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive persons or property, governmental charges or fines and attorney’s fees arising out of or affect any other rights to which any person may be entitled caused by contract the Exhibitor, or otherwise by lawtheir employees’ or agents’ installation, and removal, maintenance, occupancy or use of exhibit premises or a part thereof. Exhibitor’s liability shall not protect any person against any liability to which any such person would otherwise be subject by reason include all losses, costs, damages, or expenses arising from or out of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of any accident or bodily injury or other occurrences to any person or persons, including the Exhibitor, its reckless disregard agents, employees, and business invitees which arise from or out of the Exhibitor’s occupancy and use of the exhibition premises, the hotel or any part thereof. The Exhibitor expressly releases National Safety Council and all aforementioned individuals from any and all claims for such personloss, damage or injury. National Safety Council shall not be responsible for the security of Exhibitor’s obligations equipment or proprietary software or hardware information. This limitation of liability applies to equipment for use in the exhibit area, general session, conference sessions, and duties any other conference rooms or facilities. It is Exhibitor’s responsibility to maintain proper insurance coverage for its property and liability. Further, in no event shall National Safety Council be liable to exhibitor for any special, indirect, reliance, incidental or consequential damages of any kind, lost or damaged data, lost profits or lost revenue, whether arising in contract, tort, (including negligence), or otherwise, even if National Safety Council has been notified of the possibility thereof. Under no circumstances will National Safety Council aggregate liability for all claims arising under or relating to this Agreementagreement, regardless of the forum and regardless of the weather any action or claim is based on contract, tort, or otherwise, exceed one thousand dollars ($1,000). This limitation of liability is cumulative and not per incident.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth A. Lessor shall hold Lessee harmless and defend Lessee against any and all claims, actions, damages or liability (including without limitation, all costs, attorneys' fees and expenses incurred in Section 2(oconnection therewith) in connection with any loss, injury or damage to any person or property occurring in, on or about or arising out of this Agreement, absent the Sub- Adviser’s material breach of this Agreement all or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-AdviserPremises and/or Building or the use or occupancy thereof, or the conduct or operation of Lessor's business, when such injury or damage shall be caused by the act, neglect, fault of, or omission of, any duty with respect to the same by Lessor, its officersagents, servants and employees (unless the indemnified loss is caused wholly or in part by Lessee's negligence, in which event this indemnity shall not apply to the allocable share of such loss resulting from Lessee's negligence).
B. Lessee shall indemnify, protect, hold harmless and defend Lessor, its agents, employees, contractors, customers, partners, directors, partners, agents, employees officers and controlling persons, the Sub-Adviser shall not be liable for any act or omission affiliates (as defined in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933) of the aforementioned, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, "Lessor Affiliates") against any and all obligations, suits, losses, judgments, claims, damagesactions, liabilities, costs and expenses damages or liability (including, including without limitation, reasonable all costs, attorneys’ and accountants’ ' fees and disbursementsexpenses incurred in connection therewith) in connection with any loss, injury or damage to any person or property occurring in, on or about or arising out of all or part of the Premises and/or the Building or the use or occupancy thereof, or the conduct or operation of Lessee's business, when such injury or damage (collectively1) shall be caused by the act, “Losses”) incurred by each of them in so far as such Losses (neglect, fault of, or actions omission of, any duty with respect theretoto the same by Lessee, its agents, servants and employees, and/or (2) arise out arises from a breach, violation or non-performance of any term, provision, covenant or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementagreement of Lessee hereunder, or communication to current a breach or prospective investors in the Fund relating to disclosure provided to the Adviser violation by Lessee of any court order or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faithany law, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to executeregulation, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result ordinance of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; federal, state or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act local authority (collectively, the “Sub-Adviser Indemnitees”"Losses"), against, and hold them harmless from, any and all even if the Losses incurred by each of them are caused wholly or in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund part by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser Lessor and/or Lessor Affiliates. If any claim is made against Lessor or the Fund in the performance of Lessor's Affiliates, Lessee, at its duties under this Agreement sole cost and expense, shall defend any such claim, suit or the reckless disregard of its obligations proceeding by or duties hereunder; (iv) any failure by the Adviser through attorneys satisfactory to exercise the standard of care set forth in this Agreement; or (v) any material breach Lessor.
C. The provisions of this Agreement by Paragraph shall survive the Adviser expiration or the Fund; provided, however, that nothing in termination of this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Lease with respect to which indemnity may be sought hereunder.
f. any claims or liability occurring prior to such expiration or termination. The rights of indemnification provided in by this section shall not be exclusive Paragraph 11. is subject 4 ----------- Lessor Initials ----------- Lessee Initials ----------- 6 to Lessee's and Lessor's waiver of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence recovery in the performance preceding Paragraph 10. to the extent of such person’s duties either Lessee's or by reason Lessor's recovery of its reckless disregard loss proceeds under policies of such person’s obligations and duties under this Agreementinsurance described in Paragraph 10.
Appears in 1 contract
Samples: Commercial Lease Agreement (Business Resource Group)
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the obligations Adviser, the Fund or duties hereunder on the part Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “"Sub-Adviser Indemnitees”), against, and hold them harmless from, ") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations hereunder or duties hereunder; (iii) any untrue statement of a material fact contained in the failure Prospectuses or Statements of the Sub-Adviser to executeAdditional Information, proxy materials, advertisements or cause to be executedsales literature, portfolio investment transactions according if such statement was made in reliance upon information furnished to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure Investment Adviser by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would writing and intended for use therein. Except as may otherwise be subject provided by reason of histhe 1940 Act or any other federal securities law, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser shall indemnify and each of its membershold harmless the Fund and the Trust, partners, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, "Fund Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the “Fund Indemnitees may become subject at common law or otherwise, arising out of the Sub-Adviser's action or inaction or based on this Agreement; provided however, the Sub-Adviser Indemnitees”)shall not indemnify or hold harmless the Fund Indemnitees for any losses, againstclaims, damages, liabilities or litigation (including reasonable legal and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect theretoother expenses) arise out of or are based upon due to (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in breach by the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Trust of a Fund by the Sub-Adviser for inclusion in such documents); representation or warranty made herein or (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from makingwillful misconduct, as applicablefraud, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct reckless disregard or gross negligence of the Adviser Fund or the Fund Trust in the performance of any of its duties under this Agreement or obligations hereunder. Notwithstanding the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; providedforegoing, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section Fund shall not be exclusive of or affect deemed to have waived any other rights to which any person may be entitled by contract or otherwise by right which, under applicable law, and cannot be waived. No Trustee or shareholder of the Trust shall not protect be personally liable for any person against any liability to which any such person would otherwise be subject by reason of willful misconductdebts, bad faith liabilities, obligations or gross negligence in the performance of such person’s duties expenses incurred by, or by reason of its reckless disregard of such person’s obligations and duties contracted for under this Agreement. No Fund will be liable for any debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under this Agreement. This Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except 9.1. Parent Indemnity Parent agrees, to the fullest extent permitted by applicable Laws, to indemnify and hold harmless the Company and each Sublicensee or Services Recipient, as expressly set forth in Section 2(o) the case may be applicable, and any of this Agreementtheir respective directors, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directorsagents, members, partners, agents, stockholders and employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any other representatives of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerCompany Group (each, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the a “Securities Act”) (collectively, the “Adviser IndemniteesCompany Indemnified Party”), againston demand, and hold them harmless fromon an after-tax basis without any withholding or deduction, from and against any and all claims, liabilities, losses, claims, damages, liabilities, costs and or expenses (includingincluding legal fees) payable to third parties (each, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, a “LossesLoss”) incurred by each of them any Company Indemnified Party in so far as such Losses (or actions connection with respect thereto) arise out of or are based upon (i) any actual material misstatement falsehood, breach or omission inaccuracy of any representations and warranties included in the Fund’s Registration StatementSection 8.1, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) any breach by Parent of any of its obligations, undertakings and covenants under this Agreement, and/or (iii) any claims brought by any employees of Parent against a Company Identified Party in respect of their potential requalification as employees of the Company Group; provided that no Company Indemnified Party shall be so indemnified with respect to any Loss (i) arising as a result of breach by the Company of any of its representations and warranties in Section 8.2, (ii) arising as a result of the exercise of Parent’s rights and obligations under this Agreement, (iii) that is finally determined by a final and non-appealable judgment entered by a court of competent jurisdiction, or pursuant to a settlement agreement agreed to by such Company Indemnified Party, to have resulted from such Company Indemnified Party’s bad faith, fraud, willful misconduct or gross negligence by the Sub-Adviser or, in the performance case of its duties under this Agreement or a criminal matter, conduct undertaken with knowledge that the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to executeconduct was unlawful, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as that involves a result of any failure by claim for which Parent is entitled to indemnification from the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith Company pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutySection 9.2.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sponsorship and Services Agreement (Codere Online Luxembourg, S.A.)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent may otherwise be provided by the Sub- Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other applicable law, the Sub-Adviser Subadviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Adviser or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-Adviser acknowledges error of judgment or mistake of law by the Subadviser with respect to the Portfolio, except that it has received notice nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Subadviser for, and accepts the limitations upon the Fund’s liability set forth in Subadviser shall indemnify and hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe 1940 Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) incurred by each of them in so far as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon on (i) any actual material misstatement willful misconduct, bad faith, reckless disregard or omission gross negligence of the Subadviser in the Fund’s performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Registration Statement, any proxy statementmaterials, reports, advertisements, sales literature, or communication other materials pertaining to current the Portfolio or prospective investors the omission to state therein a material fact known to the Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in the Fund relating to disclosure provided reliance upon information furnished to the Adviser or the Fund Trust by the Sub-Adviser Subadviser Indemnitees (as defined below) for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence use therein. Information Classification: Limited Access
b. Except as may otherwise be provided by the Sub-Adviser in the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of any other applicable law, the StrategyAdviser and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Governing Documents or the Procedures; (iv) Subadviser as a result of any failure error of judgment or mistake of law by the Sub-Adviser with respect to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedPortfolio, however, except that nothing in this Agreement shall protect operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of hisfor, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund Adviser shall indemnify and hold harmless the Sub-Adviser and each of its membersSubadviser, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act 1933 Act) (collectively, the “Sub-Adviser Subadviser Indemnitees”), against, and hold them harmless from, ) against any and all Losses incurred by each losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses (the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct reckless disregard or gross negligence of the Adviser or the Fund in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; , (ivii) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) properly notify the Indemnifying Party in writing Subadviser of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have changes to the Indemnified Party; provided Registration Statement or any Charter Requirements that leads to any such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of losses, claims, damages, liabilities or affect any other rights litigation to which any person of the Subadviser Indemnitees may be entitled by contract subject, or otherwise by law, and shall not protect (iii) any person against any liability to which any such person would otherwise be subject by reason untrue statement of willful misconduct, bad faith or gross negligence a material fact contained in the performance of Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Portfolio or the omission to state therein a material fact known to the Adviser which was required to be stated therein or necessary to make the statements therein not misleading, unless such person’s duties statement or omission was made in reliance upon information furnished to the Subadviser by reason of its reckless disregard of such person’s obligations and duties under this Agreementan Adviser Indemnitee for use therein.
Appears in 1 contract
Samples: Investment Subadvisory Agreement (Brighthouse Funds Trust I)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) In the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductmisfeasance, bad faith, gross negligence negligence, or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, Manager or its officerscorporate affiliates, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser Manager nor its corporate affiliates, nor any of their directors, officers or employees shall not be liable subject to liability to the Manager, the Trust, any shareholder of the Trust, or any Money Manager for any error of judgment or mistake of law or any other act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding holding, or sale of any positionsecurity or other instrument by a Fund.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust(b) Notwithstanding Section 5(a), as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and extent that the Sub-Adviser shall not seek satisfaction Manager is found by a court of any such obligation from competent jurisdiction, the shareholders of the Fund nor from Securities and Exchange Commission (“SEC”) or any other series of regulatory agency to be liable to the Trust or any Trustees or officer, employee or agent shareholder of the Fund or other series of Trust (a “liability”) for any acts undertaken by the Trust.
c. The Sub-Adviser Manager or its corporate affiliates pursuant to this Agreement, the Sub-Manager shall indemnify the Fund and the Adviser Manager and each of their respective trustees, membersits affiliates, officers, directors and employees and shareholders, and (each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the a “Securities ActManager Indemnified Party”) (collectively, the “Adviser Indemnitees”)from, against, for and hold them harmless from, any and in respect of all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions the Manager Indemnified Party with respect thereto) arise out of or are based upon (i) to such liability, together with all legal and other expenses reasonably incurred by any actual material misstatement or omission such Manager Indemnified Party, in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in connection with such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreementliability; provided, however, that nothing if such liability results from any acts undertaken by the Sub-Manager or its corporate affiliates in connection with services pursuant to Sections 1(b) and 1(c) of this Agreement, then the Sub-Manager’s indemnification obligation in respect of claims made in any one calendar year shall be limited to the aggregate amount of fees paid to the Sub-Manager pursuant to Section 2 of this Agreement shall protect during the previous calendar year.
(c) To the extent that the Sub-Manager is found by a court of competent jurisdiction, the SEC or any Adviser Indemnitee against other regulatory agency to be liable to the Trust or any liability to which such Adviser Indemnitee would otherwise be subject shareholder of the Trust (a “liability”) for any acts undertaken by reason of his, her the Manager or its willful misfeasancecorporate affiliates, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund Manager shall indemnify the Sub-Adviser Manager and each of its members, partnersaffiliates, officers, directors and employees and shareholders, and (each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the a “Sub-Adviser IndemniteesManager Indemnified Party”)) from, against, for and hold them harmless fromin respect of all losses, any damages, costs and all Losses expenses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion Manager Indemnified Party with respect to such liability, together with all legal and other expenses reasonably incurred by any such Sub-Manager Indemnified Party, in connection with such documents); liability.
(iid) any action or inaction by Xxxxxxx the Manager nor the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement Manager shall protect any Sub- Adviser Indemnitee against bear any liability to the other party for any loss of profits (whether direct or indirect), or for any indirect, incidental, consequential or special damages of any form, incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderbrought.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Management and Compliance Services Agreement (Venerable Variable Insurance Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) Neither the Sub-Adviser nor its officers, directors, employees, affiliates, agents or controlling persons shall be liable to the Adviser, the Trust, a Fund, its shareholders and/or any other person for the acts, omissions, errors of judgment and/or mistakes of law of any other adviser, sub-Adviser, fiduciary and/or other person with respect to the Fund. Neither the Sub-Adviser nor its officers, directors, employees, affiliates, agents or controlling persons or assigns shall be liable for any act, omission, error of judgment or mistake of law by them (whether or not deemed a breach of this Agreement) and/or for any loss suffered by the Adviser, absent the Sub- Adviser’s material breach Trust, a Fund, its shareholders and/or any other person in connection with the matters to which this Agreement relates; provided that no provision of this Agreement shall be deemed to protect the Sub-Adviser against any liability to the Adviser, the Trust or the Fund arising as a result of any willful misconductmisfeasance, bad faith, faith or gross negligence in the performance of Sub-Adviser’s duties or the reckless disregard of its obligations and duties under this Agreement. The Adviser and the obligations or duties hereunder Trust, on behalf of the part of Funds, each, as applicable, hereby agrees to indemnify and hold harmless the Sub-Adviser, or its directors, officers, directorsemployees, partnersaffiliates, agents, employees agents and controlling personspersons (each an “Indemnified Party”) against any and all losses, the Sub-Adviser shall not be liable for any act claims, damages or omission in the course ofliabilities (including reasonable attorneys fees and expenses), joint or connected withseveral, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited relating to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of Agreement, the Trust or a Fund, to which any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of such Indemnified Party may become subject under the Securities Act of 1933, as amended (the “Securities Act”) (collectivelyamended, the “Adviser Indemnitees”)Securities Exchange Act of 1934, against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementAdvisers Act, or communication to current other federal or prospective investors in the Fund relating to disclosure provided to the Adviser state statutory law or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faithregulation, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable at common law, the Strategy, the Governing Documents through a civil suit or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedotherwise. It is understood, however, that nothing in this Agreement paragraph 11 shall protect any Adviser Indemnitee Indemnified Party against, or entitle any Indemnified Party to, indemnification against any liability to which such Adviser Indemnitee Indemnified Party would otherwise be subject by reason of hissubject, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each as a result of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties its duties, or by reason of its any reckless disregard of such person’s its obligations and duties under this Agreement. The indemnification in this Section 11 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Two Roads Shared Trust)
Liability and Indemnification. a. Except Each of the Sponsoring Agencies and the Operations Partner shall be responsible for its own acts and those of its elected officials, employees, agents, and subcontractors, and the results thereof. Each of the Sponsoring Agencies and the Operations Partner shall not be responsible for the acts of any of the other Sponsoring Agencies, their elected officials, employees, agents, or subcontractors and the results thereof, except as expressly set forth otherwise provided in Section 2(o) this Agreement. Claims, liabilities, obligations, losses, expenses (including reasonable attorney and other professional fees), judgments, and costs paid or incurred by any of the Sponsoring Agencies or Operations Partner, which arise out of their performance or failure to perform their duties under this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets that Sponsoring Agency or Operations Partner. Each of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund Sponsoring Agencies or the Adviser within the meaning of Section 15 of the Securities Act of 1933Operations Partner shall fully defend, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, indemnify and hold them harmless fromthe other Sponsoring Agencies or Operations Partner against all claims, any and all losses, claimsliability, damagessuits, liabilitiesjudgments, costs and expenses by reason of the action or inaction of the Sponsoring Agency and/or employees and/or the agents of the Sponsoring Agency in performing such Sponsoring Agency’s obligations under this Agreement. This statement to indemnify and hold harmless does not constitute a waiver by any governmental entity Sponsoring Agency of limitations on liability provided under Minnesota Statutes Section 466.04. Also, nothing herein shall be construed to limit any governmental entity Sponsoring Agency from asserting against third parties any defenses or immunities (includingincluding common law, without limitationstatutory and constitutional) it may have or be construed to create a basis for a claim or suit when none would otherwise exist. Also, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund full extent permitted by law, actions by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under governmental entity Sponsoring Agencies pursuant to this Agreement or are intended to be and shall be construed as a "cooperative activity” and it is the reckless disregard of its obligations or duties hereunder; (iii) the failure intent of the Sub-Adviser to executeparties that they shall be deemed a “single governmental unit" for purpose of liability, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach Minnesota Statutes, Section 471.59, subd. la(a). The liability and indemnification language of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her survive the termination or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 expiration of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth is otherwise required by the 1940 Act, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, a Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits principals, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject at common law or otherwise, costs due to the Sub-Adviser’s willful misconduct, bad faith, fraud, reckless disregard, or gross negligence; provided however, the Sub-Adviser shall not indemnify or hold harmless the Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and expenses other expenses) due to (includingi) any breach by the Investment Adviser of a representation or warranty made herein or (ii) any willful misconduct, without limitationbad faith, reasonable attorneys’ fraud, reckless disregard or gross negligence of the Investment Adviser in the performance of any of its duties or obligations hereunder.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and accountants’ fees hold harmless the Sub-Adviser and disbursementsits managers, officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “LossesSub-Adviser Indemnitees”) incurred by each against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses the Sub-Adviser Indemnitees may become subject at common law or otherwise, due to the Investment Adviser’s willful misconduct, bad faith, fraud, reckless disregard or gross negligence; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (or actions with respect theretoincluding reasonable legal and other expenses) arise out of or are based upon due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a representation or warranty made herein or (ii) the any willful misconduct, bad faith, willful misconduct fraud, reckless disregard or gross negligence by the of Sub-Adviser in the performance of any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
E. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. The Sub-Adviser may rely on information reasonably believed by it to be accurate and reliable. Except as expressly set forth in Section 2(o) of this Agreementmay otherwise be provided by the 1940 Act, absent neither the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part Sub-Adviser nor any affiliated person of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsor agents shall be subject to any liability to the Investment Adviser, the Sub-Adviser shall not be liable Portfolio or any shareholder of the Portfolio for any error of judgment, mistake of law or any loss arising out of any investment or other act or omission in the course of, connected with or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale arising out of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause service to be executedrendered hereunder, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject except by reason of willful misconductmisfeasance, bad faith or gross negligence in the its performance of such person’s its obligations and duties or by reason of its reckless disregard of such person’s its obligations and duties under this Agreement.
B. Subject to the foregoing, the Sub-Adviser shall indemnify and hold harmless the Investment Adviser, the Portfolio and their respective directors, trustees, officers, employees or agents from any and all claims, losses, expenses, obligation and liabilities (including, without limitation, reasonable attorney's fees) arising or resulting from the Sub-Adviser's willful misfeasance, bad faith or gross negligence in its performance of its obligations and duties or by reason of its reckless disregard of its obligations and duties under this Agreement. The Sub-Adviser shall not be liable to the Investment Adviser, it officers, directors, agents, employees, controlling persons or shareholders or the Portfolio or its shareholders for (i) any acts of the Investment Adviser or any other sub-adviser to ATST with respect to the portion of the assets of ATST not managed by the Sub-Adviser and (ii) acts of the Sub-Adviser which result from or are based upon acts or omissions of the Investment Adviser, including, but not limited to, failure of the Investment Adviser to provide accurate and current information with respect to records maintained by Investment Adviser or any other sub-adviser to ATST relevant to the Portfolio.
C. The Investment Adviser shall indemnify and hold harmless the Sub-Adviser, and its trustees/directors, officers, employees or agents, from any and all claims, losses, expenses, obligations and liabilities (including, without limitation, reasonable attorney's fees) arising or resulting from the Investment Adviser's violation of applicable law, willful misfeasance, bad faith or gross negligence in Investment Adviser's performance of its respective obligations or by reason of Investment Adviser's reckless disregard of its respective obligations and duties under this Agreement. The Investment Adviser acknowledges and agrees that the Sub-Adviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Portfolio or that the Portfolio will perform comparably with any standard or index, including other clients of the Sub-Adviser, whether public or private.
Appears in 1 contract
Samples: Sub Advisory Agreement (Aegon/Transamerica Series Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) of Subadviser agrees to perform faithfully the services required to be rendered by Subadviser under this Agreement, absent but nothing herein contained shall make Subadviser or any of its officers, partners, or employees liable for any loss sustained by the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, Fund or its officers, directors, or shareholders, Manager, or any other person on account of the services which Subadviser may render or fail to render under this Agreement; provided, however, that nothing herein shall protect Subadviser against liability to the Fund or its officers, directors, shareholders, Manager, or any other person to which Subadviser would otherwise be subject, by reason of its willful misfeasance, bad faith, or negligence in the performance of its duties, or by reason of its reckless disregard of its obligations and duties under this Agreement. Nothing in this Agreement shall protect Subadviser from any liabilities that it may have under the 1933 Act or the 1940 Act. Subadviser does not warrant that the portion of the assets of the Fund managed by Subadviser will achieve any particular rate of return or that its performance will match that of any benchmark index or other standard or objective. Subadviser shall not be deemed to have breached this Agreement or the Investment Guidelines by reason of fluctuations in the value of the Fund's assets arising from market movements and other events beyond Subadviser's control; provided, however, that the foregoing provision does not limit the Subadviser's duties as set forth under Section 1(a)(ii)(C) to comply with the requirements of the 1940 Act and the regulations thereunder.
(b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Subadviser, any of its affiliates, and any of the officers, partners, agentsemployees, employees and controlling personsconsultants, the Sub-Adviser or agents thereof shall not be liable for any act or omission in the course oflosses, claims, damages, liabilities, or connected with, rendering services hereunder litigation (including legal and other expenses) incurred or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon suffered by the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust Manager, or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) or controlling personx thereof (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, "Fund and Manager Indemnitees") as a result of any error of judgment or mistake of law by Subadviser with respect to the “Adviser Indemnitees”)Fund, againstexcept that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Subadviser for, and Subadviser shall indemnify and hold them harmless fromthe Fund and Manager Indemnitees against, any and all losses, claims, damages, liabilities, costs or litigation (including reasonable legal and expenses (includingother expenses) to which any of the Fund and Manager Indemnitees may become subject under the 1933 Act, without limitationthe 1940 Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise under any other statute, at common law, or otherwise arising out of or are based upon on (i) any actual willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material misstatement fact regarding the Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund or the omission to state therein a material fact regarding the Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in the Fund’s Registration Statement, any proxy statement, or communication reliance upon written information furnished to current or prospective investors in the Fund relating to disclosure provided to the Adviser Manager or the Fund by the Sub-Adviser Subadviser Indemnitees (as defined below) for inclusion in such documentsuse therein; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) any violation of federal or state statutes or regulations by Subadviser. It is further understood and agreed that Subadviser may rely upon information furnished to it by Manager that it reasonably believes to be accurate and reliable. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver of limitation of any rights that Manager may have under any securities laws.
(c) Except as may otherwise be provided by the failure 1940 Act or any other federal securities law, Manager and the Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the Sub-Adviser to execute1940 Act) or controlling personx (xx xxscribed in Section 15 of the 1933 Act) (collectively, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv"Subadviser Indemnitees") as a result of any failure error of judgment or mistake of law by Manager with respect to the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedFund, however, except that nothing in this Agreement shall protect operate or purport to operate in any Adviser Indemnitee way to exculpate, waive, or limit the liability of Manager for, and Manager shall indemnify and hold harmless the Subadviser Indemnitees against any liability and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which such Adviser Indemnitee would any of the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise be subject by reason arising out of his, her or its based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence or reckless disregard of duty.
d. The Adviser and Manager in the Fund shall indemnify the Sub-Adviser and each performance of any of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (duties or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents)obligations hereunder; (ii) any action untrue statement of a material fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions other materials pertaining to the Sub-Adviser; Fund or the omission to state therein a material fact which was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission concerned the Subadviser and was made in reliance upon written information furnished to Manager or the Fund by a Subadviser Indemnitee for use therein, or (iii) the bad faith, willful misconduct any violation of federal or gross negligence of the Adviser state statutes or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure regulations by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser Manager or the Fund; provided, however, . It is further understood and agreed that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability Manager may rely upon information furnished to which such Sub-Adviser Indemnitee would otherwise it by Subadviser that it reasonably believes to be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyaccurate and reliable.
e. Promptly after (d) After receipt by Manager, the Fund, or Subadviser, their affiliates, or any officer, director, employee, or agent of any of the foregoing, entitled to indemnification as stated in (a) or (b) above ("Indemnified Party") of notice of the commencement of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom any person obligated to provide indemnification is sought under Section 9(c) or 9(d) this section (the “"Indemnifying Party”) "), such Indemnified Party shall notify the Indemnifying Party in writing of the commencement thereof as soon as practicable after the summons or other first written notification giving information about the nature of such Proceedingthe claim that has been served upon the Indemnified Party; provided that, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from any indemnification liability which it may have under this section, except to the extent that such Indemnifying Party is damaged solely as a result of the failure to give such notice. The Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel satisfactory to the Indemnified Party; provided that Party to represent the Indemnified Party in the proceeding, and shall pay the fees and disbursements of such party is not materially prejudiced counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (1) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (2) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation by such failure both parties by the same counsel would be inappropriate due to notifyactual or potential differing interests between them. No The Indemnifying Party shall not be liable under this section for any settlement of any Proceeding entered into proceeding effected without its written consent, which consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of unreasonably withheld, but if settled with such consent or affect any other rights if there be a final judgment for the plaintiff, the Indemnifying Party agrees to which any person may be entitled by contract or otherwise by law, indemnify the Indemnified Party from and shall not protect any person against any loss or liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith such settlement or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementjudgment.
Appears in 1 contract
Samples: Subadvisory Agreement (Allianz Life Variable Account B)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) to the obligations specifically required of this the Seller Representative under the Agreement and the Escrow Agreement, absent the Sub- Adviser’s material breach Seller Representative shall not be responsible for the obligations of this Agreement the Acquired Companies or be obligated to the willful misconductBuyer for Damages, except to the extent the Seller Representative is also a Clayco Stockholder and except for his bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser willful misconduct. The Seller Representative shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of Clayco Stockholder with respect to any such obligation from the shareholders of the Fund nor from action taken or suffered by him in reliance upon any other series of the Trust notice, direction, instruction, consent or any Trustees or officer, employee or agent of the Fund statement or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund paper or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred document believed by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause him to be executedgenuine and duly authorized, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, nor for anything except his bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 willful misconduct. All conduct of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, Seller Representative shall be undertaken in good faith pursuant to and consistent with he shall not, as the Adviser’s written instructions result of his acting as the Seller Representative, be responsible for the validity, enforceability or collectability of any of the obligations of any of the other parties to the Sub-Adviser; (iii) Agreement, the bad faith, willful misconduct or gross negligence of the Adviser Clayco Closing Documents or the Fund in Seller Representative Escrow Agreement. The Seller Representative shall be entitled to indemnification from and be held harmless by the performance Clayco Stockholder against any loss, expense (including reasonable attorneys’ fees) or other liability arising out of its duties his service as Seller Representative under this Agreement or the reckless disregard Appointment of its obligations or duties hereunder; (iv) any failure Representative, other than for harm directly caused by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, his bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith and in such event he shall be entitled to payment thereof from the Seller Representative Escrow Agreement or gross negligence in the performance Escrow Fund out of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementamounts otherwise payable to the Clayco Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Enterprise Financial Services Corp)
Liability and Indemnification. 1.10.1 The Licensee undertakes to indemnify the Licensor against all liabilities, claims, demands, expenses, actions, costs, damages or loss arising out of breach or alleged breach by the Licensee in regard to the Licensee’s obligations under this Agreement. Such indemnity shall survive the termination of this Agreement.
1.10.2 The Licensor shall not be liable to the Licensee for consequential, indirect, special or exemplary damages including but not limited to damages for loss of profits, business or anticipated benefits whether arising under tort, contract, negligence or otherwise whether or not foreseen, reasonably foreseeable or advised of the possibility of such damages.
1.10.3 No responsibility is assumed by the Licensor for any injury and/or damage to persons or property as a matter of product liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in any item or Product supplied by the Licensor under this Agreement.
1.10.4 The express terms of this Agreement are in lieu of:
a. Except all warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise including but not limited to any implied warranties of merchantability or fitness for any particular purpose all of which are hereby excluded to the fullest extent permitted by law; and
b. any implied terms as expressly set forth to the performance of computers or networks when used in Section 2(o) conjunction with the Product, materials, information, goods, services, technology and/or editorial content provided under this Agreement.
1.10.5 Nothing in this Agreement shall exclude or limit either Party’s liability for:
a. death or personal injury resulting from the negligence of either Party or their servants, agents or employees;
b. fraud or fraudulent misrepresentation; or
c. breach of any implied condition as to title, or the ability to exercise any right granted under this Agreement.
1.10.6 Nothing in this Agreement shall prevent the Licensor from claiming for amounts lawfully due under the terms of this Agreement or operate to limit any liability resulting from any infringement or breach of Intellectual Property Rights by the Licensee.
1.10.7 Where the Licensor is liable to the Licensee for negligence, breach of contract or any other cause of action arising out of this Agreement, absent such liability shall not exceed the Sub- Adviser’s material breach of this Agreement or amount equal to the willful misconduct, bad faith, gross negligence or reckless disregard total sum of the obligations or duties hereunder on Fees (exclusive of all taxes) paid by the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Licensee to the assets of Licensor since the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustEffective Date.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Software License Agreement
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) Neither Midway nor any of this Agreementits partners, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agentsaffiliates, employees and controlling personsagents or the legal representatives of any of them (the “Manager Parties”) shall be liable to NYMT hereunder for any action taken or omitted to be taken or any judgment made honestly and in good faith, in the Sub-Adviser absence of gross negligence, fraud or willful misconduct. The Manager Parties shall not be liable for any act the negligence, dishonesty or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale bad faith of any position.
b. agent, provided that such agent was selected, engaged or retained by the Manager with reasonable care. The Sub-Adviser acknowledges that it has received notice Manager may consult with counsel and accountants in respect of and accepts the limitations upon the Fund’s liability set forth in the Trust’s its obligations under this Agreement and Declaration be fully protected and justified in any action or inaction which is taken in accordance with the advice or opinion of Trust, as amendedsuch counsel or accountants. The Sub-Adviser agrees that any All trading activity on behalf of the Fund’s obligations Separate Accounts shall be limited to for the assets account and risk of the Fund NYMT, and, except as otherwise provided herein, Midway and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund its affiliates and the Adviser and each of their respective trusteesofficers, directors, managers, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended agents (the “Securities ActManager Parties”) (collectivelyshall not incur any liability for trading profits or losses resulting therefrom, the “Adviser Indemnitees”), againstor any expenses related thereto. This Paragraph 15 shall be in addition to, and hold them harmless fromnot limit, any other provision of this Agreement which relieves Midway of any liability.
(b) NYMT will exculpate, indemnify and all losseshold harmless the Manager Parties (each, claimsa “Manager Indemnified Person”) from and against any loss or expense suffered or sustained as a result of or in connection with Midway’s or their performance of Midway’s or their obligations hereunder, damages, liabilities, costs and expenses (including, without limitation, any judgment, settlement, reasonable attorneys’ and accountants’ fees and disbursements) other costs and expenses incurred in connection with the defense of any actual or threatened action or proceeding (collectively, “Losses”) incurred by each of them ), provided such Manager Indemnified Person acted honestly and in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission good faith, and, in the Fund’s Registration Statementcase of criminal proceedings, any proxy statement, the Manager Indemnified Person had no reasonable cause to believe such action or communication to current or prospective investors in the Fund relating to disclosure provided inaction was unlawful. No indemnification may be made and each Manager Indemnified Person shall reimburse NYMT to the Adviser extent of any indemnification previously made in respect of any claim, issue or matter as to which the Fund by the Sub-Adviser Manager Indemnified Person shall have been adjudged to be liable for inclusion in such documents; (ii) the bad faithgross negligence, fraud or willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties to NYMT hereunder or would not otherwise be entitled to be held harmless under this Agreement Paragraph 15 hereof unless, and only to the extent that, the court in which or the reckless disregard panel before which such action or suit was brought determines that in view of its obligations or duties hereunder; (iii) all the failure circumstances of the Sub-Adviser case, despite the adjudication of liability the indemnified party is fairly and reasonably entitled to execute, or cause to be executed, portfolio investment transactions according to indemnity for those expenses which the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutycourt deems proper.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect theretoc) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt by an Indemnified Person of notice of any the commencement of an action, arbitration, claim, demand, dispute, investigation, lawsuit claim or other proceeding (each as to which a “Proceeding”) by a party seeking to claim for indemnification under this Paragraph 15 may be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)made, the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) Person shall notify the Indemnifying Party Person in writing of the commencement of such Proceedingaction, claim or proceeding; provided that, but the failure omission so to so notify the Indemnifying Party Person shall not relieve the Indemnifying Party Person from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such Party unless the failure to notify. No so notify the Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderPerson has a materially prejudicial effect against the Indemnifying Person.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (New York Mortgage Trust Inc)
Liability and Indemnification. a. Except as expressly set forth With respect to the provision of the Technical Services:
(a) subject to clause 8(c), none of the Vendors nor any Vendor Entity shall have any liability for or in Section 2(o) connection with any Claims, Losses or Liabilities of this the Purchaser or any Purchaser Entity or any Third Party Claims caused by or resulting from the performance of the Technical Services under the Technical Services Agreement, absent or from the Sub- Adviser’s material breach failure of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsfiduciary duty, the Sub-Adviser shall not be liable for good faith exercise of or refusal to exercise a discretion, any act or omission in honest mistake, ordinary negligence, any direction by the course ofPurchaser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that reliance by any of the Fund’s obligations Vendors or a Vendor Entity upon statements of fact by persons who the Purchaser or a Purchaser Entity reasonably considers to be knowledgeable, or upon the opinion or upon advice of professional and other experts, in each case to the extent arising out of or resulting from the Technical Services performed by or on behalf of any Vendor Entity; and
(b) subject to clause 8(c), the Purchaser hereby releases each of the Vendors and each Vendor Entity from and shall be limited liable to the assets of the Fund and that the Sub-Adviser as a separate and independent covenant, shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerfully protect, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall defend, indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them the Vendors and all Vendor Entities harmless from, from and against any and all lossesClaims, claims, damages, liabilities, costs Losses and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise Liabilities arising out of or are based upon (i) any actual material misstatement or omission in resulting from the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser Technical Services or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faithperformance thereof, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, including any and all Claims, Losses incurred by each and Liabilities of them in so far as such Losses (or actions with respect thereto) arise the Purchaser, the Purchaser Entities and Third Parties arising out of or are based upon resulting from the Technical Services or the performance thereof. These indemnity and defence obligations shall apply regardless of causes or of any negligent acts or omissions (i) including sole negligence, concurrent negligence or strict liability), breach of duty (statutory or otherwise), violation of law, or other fault of any material misstatement of the Vendors or omission in the Fund’s Registration Statement, any proxy statementVendor Entity, or any other communication pre-existing defect.
(c) none of the foregoing shall operate to current diminish any of the Vendor’s obligations or prospective investors in the Fund (other than liability for a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicablebreach thereof, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence respect of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyclause 9 herein.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Neither Sub-Adviser nor any of its directors, officers or employees shall not be liable subject to liability to the Adviser, the Trust or the Funds or to any shareholder of the Funds for any error of judgment or mistake of law or any other act or omission in the course of, or connected with, rendering services hereunder or hereunder, for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Subsecurity by the Funds, or as a result of any activities of Adviser or any other sub-adviser appointed by the Adviser acknowledges to provide investment management services to the Funds, provided that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations nothing herein shall be limited construed to the assets of the Fund and that protect the Sub-Adviser shall not seek satisfaction or any director, officer or employee of Sub-Adviser in the event of (i) Sub-Adviser’s material breach of this Agreement, willful misfeasance, bad faith, gross negligence, or reckless disregard of its obligations or duties hereunder or (ii) any untrue statement of a material fact (or an omission of such obligation from statement) contained in the shareholders Prospectus, registration statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Sub-Advised Portion or the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund and the Adviser by the Sub-Adviser or any director, officer, agent or employee of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. Sub-Adviser for use therein. The Sub-Adviser shall indemnify and hold harmless the Fund and Adviser, the Adviser Funds, and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser its affiliated persons (within the meaning of Section 2(a)(3) of the Investment Company Act) all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended amended), officers, directors, trustees, and employees (the each, an “Securities ActAdviser Indemnified Party”) (collectively, the “Adviser Indemnitees”), against, from and hold them harmless from, against any and all losses, claims, damageslosses, liabilities, costs and expenses costs, expenses, or damages (including, without limitation, including reasonable attorneys’ and accountants’ attorney’s fees and disbursementsother related expenses) (collectively, “Losses”) incurred by each however arising from or in connection with the performance of them in so far as such Losses (the Sub-Adviser’s obligations under this Agreement to the extent resulting from or actions with respect thereto) arise out of or are based upon relating to (i) Sub-Adviser’s material breach of this Agreement, willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its duties under this Agreement; or (ii) any actual untrue statement of a material misstatement fact (or an omission of such statement) contained in the Fund’s Registration StatementProspectus, any proxy registration statement, proxy materials, reports, advertisements, sales literature or communication other materials pertaining to current the Sub-Advised Portion or prospective investors the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund relating to disclosure provided to the and Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faithor any director, willful misconduct officer, agent or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure employee of the Sub-Adviser for use therein. Neither the Adviser (including its directors, officers and employees) nor the Funds shall be subject to execute, or cause liability to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser for any error of judgment or mistake of law by the Adviser, pertaining to exercise the standard Funds, provided that nothing herein shall be construed to protect the Adviser (including its directors, officers and employees) or the Fund in the event of care set forth in (i) the Adviser’s material breach of this Agreement; or Agreement (v) including any failure to pay the Sub-Adviser’s compensation as provided herein, which shall be deemed a material breach of this Agreement; provided), however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence negligence, or reckless disregard of duty.
d. its obligations hereunder or (ii) any untrue statement of a material fact (or an omission of such statement) contained in the Prospectus, registration statement, proxy materials, reports, advertisements, sales literature or other materials unless such statement was made in reliance on information furnished to the Fund and the Adviser by the Sub-Adviser or any director, officer, agent or employee of the Sub-Adviser for use therein. The Adviser and the Fund shall indemnify and hold harmless the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser affiliated persons (within the meaning of Section 15 2(a)(3) of the Securities Act Investment Company Act), officers, directors, trustees, and employees (collectivelyeach, the a “Sub-Adviser IndemniteesIndemnified Party”), against, ) from and hold them harmless from, against any and all Losses incurred by each of them claims, losses, liabilities, costs, expenses or damages (including reasonable attorney’s fees and other related expenses) however arising from or in so far as such Losses (or actions connection with respect thereto) arise out of or are based upon this Agreement except to the extent solely resulting from (i) Sub-Adviser’s material breach of this Agreement, own willful misfeasance, fraud, bad faith or gross negligence, or to the reckless disregard of its duties under this Agreement; or (ii) any untrue statement of a material misstatement fact (or an omission of such statement) contained in the Fund’s Registration StatementProspectus, any proxy registration statement, proxy materials, reports, advertisements, sales literature or any other communication materials pertaining to current the Sub-Advised Portion or prospective investors the Sub-Adviser to the extent that such statement was made in reliance on information furnished to the Fund (other than a misstatement or omission relating to disclosure provided to and the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) or any action director, officer, agent or inaction by employee of the Sub-Adviser that for use therein. Notwithstanding anything to the Sub-Adviser has made contrary contained herein, no party to this Agreement shall be responsible or refrained from making, as applicable, in good faith pursuant liable for its failure to and consistent with the Adviser’s written instructions perform under this Agreement or for any losses to the Sub-AdviserAdvised Portion resulting from any event beyond the reasonable control of such party or its agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; (iii) or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the bad faithSub-Advised Portion; or the breakdown, willful misconduct failure or gross negligence malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, pandemic, or any other similar event. In no event, shall any party be responsible for incidental, consequential or punitive damages hereunder. No provision of this Agreement shall be construed to protect any director or officer of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason from liability in violation of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(cSections 17(h) or 9(d(i) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement 1940 Act. The provisions of such Proceeding; provided that, this Section 8 shall survive the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement termination of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Emerge ETF Trust)
Liability and Indemnification. a. Except 11.1. Each Party’s maximum liability for direct damages under this Agreement to the other Party shall always be limited to the amount in fees hereunder actually paid or payable by the Affiliate to the applicable Company. Each Party releases the other Party from all obligations, liability, claims or demands in excess of the aforementioned limitation.
11.2. The applicable Company shall not be liable in contract, tort, for breach of statutory duty or in any other way for any indirect damages or losses that may occur as a consequence of this Agreement whatsoever, such as any economic loss, loss of profit, loss of savings, loss of goodwill or reputation, or other consequential damage.
11.3. The above stated limitations of liability shall not apply in case of acts of gross negligence or wilful misconduct by the liable Party or anyone acting on its behalf, or if expressly set forth stated elsewhere in Section 2(othis Agreement.
11.4. The Affiliate agrees to defend, indemnify and hold the applicable Company and its group of companies/affiliates, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable legal and expert fees, related to or arising from:
a) any breach of Affiliate's representations, warranties or obligations under this Agreement;
b) Affiliate's use (or misuse) of this Agreementthe marketing material and the applicable Company's and/or its group companies' Intellectual Proper ty Rights;
c) all conduct and activities occurring under Affiliate's user ID and password;
d) any defamatory, absent libellous or illegal material contained on the Sub- Adviser’s material breach Affiliate Website(s) or Affiliate's information and data;
e) any claim or contention that the Affiliate Website(s) or the Affiliate's information and data infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity;
f) third party access or use of the Affiliate Website(s) or the Affiliate's information and data;
g) any claim related to Affiliate Website(s) or the Links; and
h) any violation of this Agreement or any applicable laws.
11.5. The applicable Company and its group of companies reserves the willful misconductrights to participate, bad faithat its own expense, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale defense of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth matter or claim in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited relation to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trustabove.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Affiliate Agreement
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent 7.1 The Agent’s duties and responsibilities to the Sub- Adviser’s material breach of this Agreement or Seller and the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations Purchaser shall be limited to those set forth in this Escrow Agreement and the assets Agent shall neither be subject to nor obliged to recognize any other agreement between any or all of the Fund and that the Sub-Adviser Parties hereto.
7.2 The Agent shall not seek satisfaction of be held liable for any such obligation from action taken by the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAgent, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits directors, officers, employees and shareholders, and each person, if any, who controls or any third party appointed by the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all lossesAgent in good faith in accordance with this Escrow Agreement. The Agent shall only be held liable with respect to actions, claims, damagesdemands or proceedings, liabilitiescosts, costs charges, expenses and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund other liabilities relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Escrow Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject arise by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and wilful wrong-doing by the Fund shall indemnify the Sub-Adviser and each Agent or any of its members, partnersdirectors, officers, employees or any third party appointed by the Agent.
7.3 The Seller and shareholdersthe Purchaser agree to indemnify, jointly and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectivelyseverally, the “Sub-Adviser Indemnitees”), against, Agent against all losses and hold them harmless from, any and all Losses damages suffered or incurred by each of them the Agent in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent connection with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard fulfilment of its obligations under this Escrow Agreement unless such losses or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; damages are suffered or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject occurred by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard wilful wrong-doing by the Agent or any of dutyits directors, officers, employees or any third party appointed by the Agent. THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [***] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. 7.4 The rights of indemnification provided in this section Agent shall not be exclusive held liable for any damage which has arisen due to an enactment (Swedish or foreign), actions by any authority (Swedish or foreign), actions of war, strike, blockade, lockout or affect any other rights similar circumstances. The exception with regards to which any person may strike, blockade and lockout shall be entitled by contract applicable even though the Agent itself is exposed to or otherwise by law, and shall not protect any person against any liability to which any takes such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementactions.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees or agents shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 2(o36(b)(3) of the 0000 Xxx) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.
(b) Adviser and Sub-Adviser agree to defend, indemnify and hold harmless the other and each of their respective officers, directors, members, employees and/or agents from any and all claims, losses, damages, liabilities, costs and/or expenses directly resulting from the other’s violation of any of the terms of this Agreement, absent the Sub- . Adviser and Sub-Adviser’s material breach obligations under this paragraph shall survive the termination of this Agreement Agreement.
(c) Any person, even though also a director, officer, employee, shareholder, member or the willful misconduct, bad faith, gross negligence or reckless disregard agent of the obligations Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s duties hereunder on hereunder), to be rendering such services to or acting solely for the part Trust and not as a director, officer, employee, shareholder, member or agent of the Sub-Adviser, or its officersone under the Sub- Adviser’s control or direction, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund even though paid by the Sub-Adviser for inclusion Adviser.
(d) As used in such documents; (ii) this Section 10, the bad faith, willful misconduct or gross negligence by term the “Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure Adviser” shall include any affiliates of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, directors, officers and each person, if any, who controls the Sub-Adviser within the meaning employees of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.such
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth (a) Stein Roe shall not be liaxxx xx xxy Trust for any action taken or thing done by it or its employees or agents on behalf of the Trust in Section 2(ocarrying out the terms and provisions of this Agreement if done in good faith and without negligence or misconduct on the part of Stein Roe, its empxxxxxx xx agents.
(b) The Trust shall indemnify and hold Stein Roe, and its xxxxxxxxing persons, if any, harmless from any and all claims, actions, suits, losses, costs, damages, and expenses, including reasonable expenses for counsel, incurred by it in connection with its acceptance of this Agreement, absent the Sub- Adviser’s material breach of this Agreement in connection with any action or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, omission by it or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser agents in the performance of its duties under this Agreement or hereunder to the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to executeTrust, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure acting upon instructions believed by it to have been executed by a duly authorized agent of the Trust or as a result of acting upon information provided by the Sub-Adviser Trust in form and under policies agreed to exercise by Stein Roe and the standard Trust, xxovided that: (i) to the extent such claims, actions, suits, losses, costs, damages, or expenses relate solely to one or more Series, such indemnification shall be only out of care set forth in the assets of that Series or group of Series; (ii) this Agreement; indemnification shall not apply to actions or (v) any material breach omissions constituting negligence or misconduct on the part of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her Stein Roe or its employees xx xxxxxs, including but not limited to willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Stein Roe shall give the Txxxx prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Stein Roe.
(c) Stein Xxx xxxxx indemnify xxx xxxx harmless the Trust from and against any and all claims, demands, expenses and liabilities which such Trust may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Stein Roe or its agents or xxxxxxxxors, or the breach by Stein Roe of its obligatioxx xxxxx this Agreement, provided that: (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of such Trust or its other agents or contractors and (ii) such Trust shall give Stein Roe prompt nxxxxx xxx xxxxxxxble opportunity to defend against any such claim or action in its own name or in the name of such Trust.
Appears in 1 contract
Samples: Accounting and Bookkeeping Agreement (Liberty Stein Roe Advisor Trust)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) of this Agreement, absent Unless caused by the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard willful misconduct of the obligations or duties hereunder on the part any of the Sub-AdviserLandlord, or its officersagents, directors, partners, agents, officers and employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser IndemniteesLandlord Protected Parties”), againstand subject to the mutual release and waiver of subrogation contained herein, Xxxxxx agrees to protect, indemnify and hold them save the Landlord Protected Parties harmless fromfrom and against all liabilities, any and all lossesobligations, claims, damages, liabilitiespenalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsexpenses) (collectively, “Losses”) imposed upon or incurred by each or asserted against the Landlord Protected Parties, or any of them in so far as such Losses them, by reason of (or actions with respect thereto) arise out of or are based upon (ia) any actual material misstatement failure on the part of Tenant to perform or omission in the Fund’s Registration Statement, comply with any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements terms of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this AgreementLease; or (vb) performance of any material breach labor or services or the furnishing of this Agreementany materials or any property in respect to the Premises or any part thereof; provided, however, that nothing notwithstanding anything to the contrary contained in this Agreement Lease, in no event shall protect any Adviser Indemnitee against Tenant have any liability to which such Adviser Indemnitee would otherwise be subject hereunder for consequential damages or indirect losses. In case any action, suit or proceeding is brought against Landlord by reason of hisany such occurrence, her Tenant will, at Xxxxxx’s expense, by counsel reasonably approved by Landlord, resist and defend such action, suit or its willful misfeasanceproceeding, bad faith, gross or cause the same to be resisted and defended.
(b) Unless caused by the negligence or reckless disregard willful misconduct of duty.
d. The Adviser any of Tenant, its agents, directors, officers and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser IndemniteesTenant Protected Parties”), againstand subject to the mutual release and waiver of subrogation contained herein, Landlord agrees to protect, indemnify and hold them save the Tenant Protected Parties, harmless fromfrom and against all liabilities, any obligations, claims, damages, penalties, causes of action, costs and all Losses expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in asserted against the Fund’s Registration Statement, any proxy statementTenant Protected Parties, or any other communication to current or prospective investors in the Fund of them, by reason of (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iva) any failure by on the Adviser part of Landlord to exercise perform or comply with any of the standard terms of care set forth in this AgreementLease; or (vb) performance of any material breach of this Agreement by the Adviser labor or services or the Fundfurnishing of any materials or any property in respect to the Building or any part thereof; provided, however, that nothing notwithstanding anything to the contrary contained in this Agreement Lease, in no event shall protect any Sub- Adviser Indemnitee against Landlord have any liability to which such Sub-Adviser Indemnitee would otherwise be subject hereunder for consequential damages or indirect losses. In case any action, suit or proceeding is brought against Tenant by reason of hisany such occurrence, her Landlord will, at Xxxxxxxx’s expense, by counsel reasonably approved by Xxxxxx, resist and defend such action, suit or its willful misfeasanceproceeding, bad faith, gross or cause the same to be resisted and defended.
(c) Except in the case of Landlord’s negligence or reckless disregard willful misconduct, Landlord shall not be responsible or liable to Tenant, or to those claiming by, through or under Tenant, for any loss or damage caused to Tenant, its agents, contractors, employees or invitees or their property from the breaking, bursting, stoppage or leaking of dutywater, gas, sewer or steam pipes, or electrical cable or wires, or for any damage or loss of property in the Premises from any cause whatever.
e. Promptly after receipt (d) The provisions of notice this Section shall survive the termination of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Lease with respect to which indemnity may be sought hereunderany claims or liability accruing prior to such termination.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Lease Agreement
Liability and Indemnification. a. Except as expressly set forth (a) HGI shall indemnify and hold Administrator and its controlling persons, if any, harmless from any and all claims, actions, suits, losses, costs, damages, and expenses, including reasonable expenses for counsel, incurred by it in Section 2(o) connection with its acceptance of this Agreement, absent the Sub- Adviser’s material breach of this Agreement in connection with any action or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, omission by it or its officers, directors, partnersemployees, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser hereunder to executeHGI, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of acting upon any failure instruction believed by the Sub-Adviser it to exercise the standard have been executed by a duly authorized agent of care set forth HGI or as a result of acting upon information provided by HGI in this Agreement; or (v) any material breach of this Agreementform and under policies agreed to by Administrator and HGI; provided, however, that nothing in (i) to the extent such claims, actions, suits, losses, costs, damages, or expenses relate solely to one or more Funds, such indemnification shall be only out of the assets of that Fund or group of Funds; (ii) this Agreement indemnification shall protect any Adviser Indemnitee against any liability not apply to which such Adviser Indemnitee would otherwise be subject by reason actions or omissions constituting negligence or misconduct on the part of his, her Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give HGI prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, HGI shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
(b) Administrator shall indemnify and hold harmless HGI from and against any and all claims, demands, expenses, and liabilities which HGI may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of HGI, or its other agents or contractors, and (ii) HGI shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of HGI. In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent Neither the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsServicer, the Sub-Adviser shall not be liable for any act or omission in Special Servicer, the course ofTrustee, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that Note Administrator nor their Affiliates nor any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesmanagers, members, directors, officers, employees and shareholdersor agents thereof shall be under any liability to either the USActive 56231551.8.docx Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, and each person, if any, who controls the Fund in good faith pursuant to or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions connection with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementthis Agreement, or communication to current or prospective investors for errors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreementjudgment; provided, however, that nothing in this Agreement provision shall not protect the Servicer, the Special Servicer, the Note Administrator or the Trustee or any Adviser Indemnitee such Person against any liability to which such Adviser Indemnitee would otherwise be subject imposed on the Servicer, the Special Servicer, the Note Administrator or the Trustee or any such Person, respectively, by reason of histhe willful misfeasance, her bad faith or its negligence in the performance of the Servicer’s, the Special Servicer’s, the Note Administrator’s or the Trustee’s, respectively, duties hereunder. The Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, and any partners, shareholders, members, managers, officers, directors, employees, agents, accountants and attorneys thereof may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, and any partners, shareholders, members, managers, officers, directors, employees, agents, accountants and attorneys thereof shall be indemnified and held harmless by the Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, and including any fees or expenses related to the enforcement of this indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator or the Trustee authorized, requested or advised the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of the willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of the duties of the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s or the Trustee’s, as the case may be, representations and warranties set forth in Section 7.01. Any such personindemnification shall be payable only pursuant to the Priority of Payments under the Indenture and not from any amounts on deposit in the Collection Account. In the event that the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Mortgage Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer (or the Collateral Manager acting on behalf of the Issuer) shall promptly remit such overcharge to the related Obligor or other Obligors after the Issuer’s duties receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, by reason of its reckless disregard (i) the willful misfeasance, bad faith or negligence in the performance of such person’s obligations the duties of the Servicer, the Special Servicer, the Note Administrator or the Trustee, as applicable, hereunder or (ii) a breach of the representations and duties under this Agreementwarranties of the Servicer or the Special Servicer set forth in Section 7.01.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) In the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductmisfeasance, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder ("disabling conduct") hereunder, on the part of the Sub-Adviser, or Adviser (and its officers, directors, partners, agents, employees and employees, controlling persons, shareholders and any other person or entity affiliated with the Sub-Adviser), the Sub-Adviser shall not be liable subject to liability to the Adviser, its officers, directors, agents, employees, controlling persons or shareholders or to the Fund or to any shareholder of the Fund for any act or omission in the course of, or connected with, rendering services hereunder hereunder, including without limitation, any error of judgment or mistake of law or for any losses that may be sustained loss suffered by any of them in connection with the purchasematters to which this Agreement relates. Except for such disabling conduct,the Adviser shall indemnify the Sub-Adviser ( and its officers, holding directors, partners, agents, employees, controlling persons, shareholders and any other person or entity affiliated with the Sub-Adviser) (collectively, the "Indemnified Parties") from any and all losses, claims, damages, liabilities or litigation ( including reasonable legal and other expenses) arising from the Sub-Adviser's providing services under this Agreement or the sale of any positionsecurities of the Fund.
b. The Sub-Adviser acknowledges that it has received notice of agrees to indemnify and accepts the limitations upon hold harmless the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and their affiliates and each of their respective officers, directors, trustees, members, officersagents, employees and shareholders, and each person, if any, person who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended 1933 (the “Securities "1933 Act”") (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in to which the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or their affiliates or such officers, directors, trustees, agents, employees or controlling persons may become subject under the Fund 1933 Act, under other statutes, at common law or otherwise, which are caused by the Sub-Adviser for inclusion Adviser's disabling conduct or any untrue statement of a material fact contained in such documents; (ii) the bad faithRegistration Statement, willful misconduct proxy materials, reports, advertisements, sales literature or gross negligence by other materials pertaining to the Fund or the omission to state therein a material fact known to the Sub-Adviser in which was required to be stated therein or necessary to make the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of statements therein not misleading. In no case is the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result Adviser's indemnity in favor of any failure by the Sub-Adviser person deemed to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee such other persons against any liability to which such Adviser Indemnitee person would otherwise be subject by reasons of willful misfeasance, bad faith, or gross negligence in the performance of his, her or its duties or by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyobligations or duties under this Agreement.
d. c. The Sub-Adviser and shall not be liable to the Adviser, its officers, directors, agents, employees, controlling persons or shareholders or to the Fund shall indemnify or its shareholders for (i) any acts of the Adviser or any other sub-adviser to the Fund with respect to the portion of the assets of the Fund not managed by the Sub-Adviser; and (ii) acts of the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of which result from or are based upon (i) acts of the Adviser, including, but not limited to, a failure of the Adviser to provide accurate and current information with respect to any material misstatement or omission in records maintained by the Fund’s Registration Statement, any proxy statement, Adviser or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided sub-adviser to the Adviser or the Fund Fund, which records are not also maintained by the Sub-Adviser for inclusion in or, to the extent such documents); (ii) any action or inaction records relate to the portion of the assets managed by the Sub-Adviser, [otherwise available to the Sub-Adviser upon reasonable request.] The Adviser and Sub- Adviser each agree that the Sub-Adviser has made or refrained from makingshall manage the portion of the assets of the Fund allocated to it and shall comply with Section 2 of this Agreement (including, as applicablebut not limited to, in good faith pursuant the investment objectives, policies and restrictions applicable to and consistent the Fund) only with respect to the Adviser’s written instructions portion of assets of the Fund allocated to the Sub-Adviser; . The Adviser shall indemnify the Indemnified Parties from any and all losses, claims, damages, liabilities or litigation (iiiincluding reasonable legal and other expenses) arising from the bad faith, willful misconduct or gross negligence conduct of the Adviser or Adviser, the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) and any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Subother sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent adviser with respect to which indemnity may be sought hereunderthe portion of the Fund's assets not allocated to the Sub-Adviser.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (Van Kampen Dynamic Credit Opportunities Fund)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the Investment Company Act or any other federal securities law, neither the Sub-Adviser, any affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and any controlling persons (as described in Section 2(o15 of the 1933 Act), nor any of their respective officers, members or employees (each an “Affiliate” and collectively, its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation or any formal or informal inquiry, investigation or request by a regulatory agency or authority with jurisdiction over the Sub-Adviser (including legal and other expenses) incurred or suffered by the Adviser, the Trust, each Fund or any of this Agreementtheir Affiliates, absent control persons or securityholders as a result of any error of judgment, mistake of law or any other action or inaction by the Sub- Adviser’s material breach of Sub-Adviser or its Affiliates with respect to a Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Sub-Adviser for acts or omissions to act arising out of or based on any willful misconduct, bad faith, reckless disregard or gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser in the performance of any of its duties or obligations hereunder.
B. Except as may otherwise be provided by the Investment Company Act or any other federal securities law, the Adviser, or its officersthe Trust, directorseach Fund and their Affiliates, partners, agents, employees control persons and controlling persons, the Sub-Adviser securityholders shall not be liable for any act losses, claims, damages, liabilities or omission in litigation or any formal or informal inquiry, investigation or request by a regulatory agency or authority with jurisdiction over the course of, Adviser (including legal and other expenses) incurred or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that suffered by the Sub-Adviser shall not seek satisfaction as a result of any error of judgment, mistake of law or any other action or inaction by the Adviser with respect to such obligation from Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the shareholders liability of the Fund nor from any other series of Adviser for, and the Trust or any Trustees or officer, employee or agent of Advisor shall indemnify and hold harmless the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAdviser, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation or any formal or informal inquiry, costs investigation or request by a regulatory agency or authority with jurisdiction over the Adviser (including reasonable legal and expenses (includingother expenses) to which any of the Sub-Adviser Indemnitees may become subject under the 1933 Act, without limitationthe Investment Company Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any actual willful misconduct, bad faith, reckless disregard or gross negligence of the Adviser, the Trust or any Trustees of the Trust in the performance of any of their duties or obligations hereunder or under the Investment Advisory Agreement, (ii) any untrue statement of a material misstatement fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to any Fund or the omission to state therein a material fact that was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made solely in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Adviser or the Fund Trust in writing by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct documents or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s, the Trust’s or such Fund’s written instructions to the Sub-Adviser; .
C. Expenses (iiiincluding attorneys’ fees) incurred by the bad faith, willful misconduct Sub-Advisor in defense or gross negligence settlement of any claim that may be subject to a right of indemnification hereunder shall be advanced prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise Advisor to repay the amount advanced to the extent that it shall be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking determined ultimately that the Sub-Advisor is not entitled to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Partyhereunder; provided that the Sub-Advisor shall provide a letter from its counsel that in view of such party counsel, the Sub-Advisor is not materially prejudiced by such failure likely to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect found to which indemnity may be sought not entitled to indemnification hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
D. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify and hold harmless the Fund and Adviser, the Adviser and each of their respective trusteesTrust, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within all affiliated persons thereof(within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”1000 Xxx) (collectively, the “Adviser Indemnitees”), against, from and hold them harmless from, against any and all claims, losses, claims, damages, liabilities, costs and expenses liabilities or damages (including, without limitation, including reasonable attorneys’ and accountants’ attorney’s fees and disbursementsother related expenses) (collectively, “Losses”) incurred by each reason of them in so far as such Losses (or actions with respect thereto) arise arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the Adviser’s willful misfeasance, bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement hereunder or the its reckless disregard of its obligations or and duties hereunder; (iii) the failure of under this Agreement The Adviser shall indemnify and hold harmless the Sub-Adviser and all affiliated persons thereof to executethe extent that any such party incurs actual losses, liabilities or damages (including reasonable attorney’s fees and other related expenses) by reason of or arising out of the Adviser’s willful misfeasance, bad faith, or cause to be executed, portfolio investment transactions according to gross negligence in the requirements performance of applicable law, the Strategy, the Governing Documents its duties hereunder or the Procedures; (iv) as a result its reckless disregard of any failure by its obligations and duties under this Agreement. Neither the Sub-Adviser nor its directors, officers, employees, agents or controlling persons or assigns shall be liable for any error of judgment or mistake of law or for any loss suffered by the Trust, any Fund or its shareholders in connection with the matters to exercise the standard of care set forth in which this Agreement; or (v) any material breach of this AgreementAgreement relates; provided, however, that nothing in no provision of this Agreement shall be deemed to protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls against liability to the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless fromTrust, any and all Losses incurred by each of them in so far as such Losses (Fund or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication its shareholders to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained which it might otherwise be subject directly resulting from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its ’s own willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductfraud, bad faith or gross negligence in the performance of such personthe Sub-Adviser’s duties obligations under this Agreement or by reason of its reckless disregard of such person’s obligations and its duties under this Agreement. Notwithstanding anything to the contrary contained herein, no party to this Agreement, its affiliates or its affiliated persons shall be responsible or liable for its failure to perform under this Agreement or for any losses to the Assets resulting from any event beyond the reasonable control of such party or its agents, including, but not limited to, nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Assets; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts or war, terrorism, insurrection or revolution; or acts of God, or any other similar event. In no event, shall any party be responsible for incidental, consequential or punitive damages hereunder. The provisions of this Section shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Elevation Series Trust)
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees or agents shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 2(o36(b)(3) of the 1000 Xxx) or a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement.
(b) Adviser and Sub-Adviser agree to defend, indemnify and hold harmless the other and each of their respective officers, directors, members, employees and/or agents from any and all claims, losses, damages, liabilities, costs and/or expenses directly resulting from the other’s violation of any of the terms of this Agreement, absent the Sub- . Adviser and Sub-Adviser’s material breach obligations under this paragraph shall survive the termination of this Agreement Agreement.
(c) Any person, even though also a director, officer, employee, shareholder, member or the willful misconduct, bad faith, gross negligence or reckless disregard agent of the obligations Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with the Sub-Adviser’s duties hereunder on hereunder), to be rendering such services to or acting solely for the part Trust and not as a director, officer, employee, shareholder, member or agent of the Sub-Adviser, or its officersone under the Sub- Adviser’s control or direction, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund even though paid by the Sub-Adviser for inclusion Adviser.
(d) As used in such documents; (ii) this Section 10, the bad faith, willful misconduct or gross negligence by term the “Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure Adviser” shall include any affiliates of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, directors, officers and each person, if any, who controls the Sub-Adviser within the meaning employees of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.such
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth AMICUS shall indemnify, defend and hold harmless MSSM and its trustees, officers, directors, medical and professional staff, employees, students and agents and their respective successors, heirs and assigns (the “Indemnitees”), against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in Section 2(oconnection with any claims, suits, actions, demands or judgments: (i) arising out of the production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by AMICUS or by a licensee, Affiliate or agent of AMICUS of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement, absent or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. AMICUS’s indemnification under subsection a(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the Sub- Advisernegligent activities of the Indemnitees. AMICUS’s material breach of this Agreement indemnification under subsection a (ii), above, shall not apply to any liability, damage, loss or expense to the willful misconduct, bad faithextent that it is attributable to the negligence, gross negligence or reckless disregard intentional misconduct of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustIndemnitees.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesAMICUS shall, membersat its own expense, officers, employees and shareholders, and each person, if any, who controls the Fund provide attorneys reasonably acceptable to MSSM to defend against any actions brought or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, filed against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions party indemnified hereunder with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser subject of indemnity contained herein, whether or the Fund by the Sub-Adviser for inclusion in not such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyactions are rightfully brought.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its membersEXCEPT AS PROVIDED IN THIS SECTION 9, partnersNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, officersCONSEQUENTIAL, employees and shareholdersSPECIAL, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyEXEMPLARY OR PUNITIVE DAMAGES.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of indemnify and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify hold harmless the Fund and the Adviser and each of Trust, their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the Fund’s Registration Statement, performance of any proxy statement, of its duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
D. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth A. The Adviser shall exercise its best judgment in Section 2(o) of rendering the services under this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-. The Adviser shall not be liable for any act error of judgment or omission in the course of, or connected with, rendering services hereunder mistake of law or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of loss suffered by the Fund or other series its shareholders in connection with the matters to which this Agreement relates, provided that nothing herein shall be deemed to protect or purport to protect the Adviser against any liability to the Fund or to its shareholders to which the Adviser would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or by reason of the Trust.
c. The Sub-Adviser Adviser’s reckless disregard of its obligations and duties under this Agreement. Notwithstanding the foregoing, nothing herein shall indemnify the Fund and relieve the Adviser from any of its obligations under applicable law, including, without limitation, the federal and each of their respective trusteesstate securities laws. As used in this subsection, the term “Adviser” shall include any managers, members, officers, partners, employees and shareholdersother affiliates of the Adviser, any Sub-Adviser that has entered into a sub- advisory agreement with the Adviser performing services with respect to the Fund and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933controls the Adviser.
B. The Adviser shall indemnify the Fund and its respective affiliates and controlling persons, as amended (the “Securities Act”) (collectivelyfor any liability and expenses, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, including without limitation, limitation reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyexpenses, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to which may be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) sustained as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its Adviser’s willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its membersnegligence, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any , a material breach of a provision of this Agreement by or violation of applicable law, including, without limitation, the federal and state securities laws. Unless otherwise obligated under applicable law, the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive liable for indirect, punitive, special or consequential damages arising out of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Advisory Agreement (PRISM Multi Strategy Fund)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard None of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsServicer, the Sub-Adviser shall not be liable for any act or omission in Servicer, the course ofSpecial Servicer, or connected withthe Trustee, rendering services hereunder or for any losses that may be sustained in the purchaseNote Administrator, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that Collateral Manager nor their Affiliates nor any of the Fund’s obligations managers, members, directors, officers, employees or agents thereof shall be limited under any liability to either the assets Issuer or the Co-Issuer or any third party (including the Noteholders) for taking or refraining from taking any action, in good faith pursuant to or in connection with this Agreement, or for errors in judgment; provided, however, that none of the Fund and that Servicer, the Sub-Adviser shall not seek satisfaction Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee or any such Person will be protected against any breach of its representations or warranties (if any) made in this Agreement or any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of its duties hereunder. The Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, and any director, officer, manager, member, employee or agent thereof may rely in good faith on any document of any such obligation from kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Servicer, the shareholders of Sub-Servicer, the Fund nor from Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, and any other series of the Trust or any Trustees or member, manager, director, officer, employee or agent thereof shall be indemnified and held harmless by the Issuer and the Co-Issuer against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of such indemnity, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, the performance hereunder by, or any specific action which the Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator, the holder of the Fund Controlling Companion Participation or the Trustee authorized, requested or advised the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of the willful misfeasance, bad faith, or negligence in the performance of the duties of the Servicer, the Sub-Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, or breach of the Servicer’s, the Special Servicer’s, the Note Administrator’s, the Collateral Manager’s or the Trustee’s, as the case may be, representations and warranties set forth in Section 7.01. Any such indemnification shall be payable from any amounts on deposit in the Collection Account or the Participated Loan Collection Account (other than in the case of the Note Administrator and the Trustee) and pursuant to the Priority of Payments under the Indenture. In the event that the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, as the case may be, sustains any loss, liability or expense which results from any overcharges to Obligors under the Commercial Real Estate Loans, to the extent that such overcharges were collected by the Servicer or the Special Servicer, as the case may be, and remitted to the Issuer, the Issuer (or the Collateral Manager acting on behalf of the Issuer) shall promptly remit such overcharge to the related Obligor or other series Obligors after the Issuer’s receipt of written notice from the Servicer or the Special Servicer, as the case may be, regarding such overcharge. The Issuer and any director, officer, employee or agent thereof shall be indemnified and held harmless by the Servicer, the Special Servicer, the Note Administrator or the Trustee, as the case may be, against any loss, liability or expense incurred, including reasonable attorneys’ fees, including in connection with the enforcement of this indemnity, by reason of (i) the willful misfeasance, bad faith or negligence in the performance of the Trust.
c. The Sub-Adviser duties of the Servicer, the Special Servicer, the Note Administrator or the Trustee, as applicable, hereunder or (ii) a breach of the representations and warranties of the Servicer or the Special Servicer set forth in Section 7.01. Each of the Servicer and the Special Servicer, severally and not jointly, shall indemnify and hold harmless each of the Fund Trustee and the Adviser Note Administrator from and each of their respective trusteesagainst any claims, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilitiespenalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far the Trustee or the Note Administrator, as such Losses (or actions with respect thereto) the case may be, that arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, fraud or willful misconduct on the part of the Servicer or gross negligence by the Sub-Adviser Special Servicer, as the case may be, in the performance of its duties obligations under this Agreement or the reckless its negligent disregard of its obligations or and duties hereunder; (iii) the failure under this Agreement. Each of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable lawTrustee, the StrategyNote Administrator and the Advancing Agent, severally and not jointly, shall indemnify and hold harmless each of the Governing Documents Servicer and the Special Servicer from and against any claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses, including the costs of enforcing this indemnity, and related costs, judgments and other costs and expenses incurred by the Servicer or the Procedures; (iv) Special Servicer, as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, howevercase may be, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statementnegligence, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, fraud or willful misconduct or gross negligence on the part of the Adviser Trustee, the Note Administrator or the Fund Advancing Agent, as the case may be, in the performance of its obligations under this Agreement or the Indenture or its negligent disregard of its obligations and duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing Indenture. Each of the commencement of such Proceeding; provided that, Servicer and the failure to so notify the Indemnifying Party Special Servicer shall not relieve the Indemnifying Party from any indemnification liability which it may have be entitled to the Indemnified Partysame rights, protections, immunities and indemnities afforded to each herein in connection with any matter contained in the Indenture. Neither the Servicer nor the Special Servicer shall be responsible for any delay or failure in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war); provided that such party delay or failure is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement also a result of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconductown negligence, bad faith or gross negligence willful misconduct. Additionally, neither the Servicer nor the Special Servicer shall be liable for the actions or omissions of the Issuer, the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation), the Co-Issuer, the Trustee, the Note Administrator, the Servicer (in the performance case of such person’s duties the Special Servicer), the Special Servicer (in the case of the Servicer), and without limiting the foregoing, neither the Servicer nor the Special Servicer shall be under any obligation to verify compliance by any party hereto with the terms of the Indenture (other than itself) or to verify or independently determine the accuracy of information received by reason it from the Trustee, the Collateral Manager, the Issuer or Note Administrator (or from any selling institution, agent bank, trustee or similar source) with respect to the Commercial Real Estate Loans or Collateral Interests. The provisions of its reckless disregard this Section shall survive any termination of such person’s the rights and obligations and duties under this Agreementof the Servicer, the Special Servicer, the Note Administrator or the Trustee hereunder.
Appears in 1 contract
Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent may otherwise be provided by the Sub- Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other federal securities law, the Sub-Adviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Investment Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The error of judgment or mistake of law by the Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon with respect to the Fund’s , except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability set forth in of the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund for, and that the Sub-Adviser shall not seek satisfaction indemnify and hold harmless the Trust, the Investment Manager, all affiliated persons thereof within the meaning of any such obligation from the shareholders Section 2(a)(3) of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund 1940 Act (“affiliated person”) and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each personall persons, if anyany who, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”), control (“controlling person”) the Trust or the Investment Manager (collectively, the “Adviser Investment Manager Indemnitees”), against, and hold them harmless from, against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses to which any of the Investment Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the Investment Advisers Act of 1940, as amended (includingthe “Advisers Act”), without limitationthe Internal Revenue Code, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyunder any other statute, “Losses”) incurred by each of them in so far as such Losses (law, rule or actions with respect thereto) arise regulation, at common law or otherwise, arising out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; Adviser’s responsibilities hereunder (iia) to the extent of and as a result of the willful misconduct, bad faith, willful misconduct or gross negligence by the Sub-Adviser, any of the Sub-Adviser’s employees or representatives or any affiliate of or any person acting on behalf of the Sub-Adviser, or (b) as a result of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund, including any amendment thereof or any supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made in reliance upon and in conformity with written information furnished by the Sub-Adviser to the Investment Manager, the Trust or any affiliated person of the Investment Manager or the Trust or upon verbal information confirmed by the Sub-Adviser in writing, or (c) to the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) extent of, and as a result of, the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable lawthe 1940 Act, the StrategyInternal Revenue Code, the Governing Documents or Registration Statement and the Board/Investment Manager Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall no case is the Sub-Adviser’s indemnity in favor of any Investment Manager Indemnitee deemed to protect any Adviser Indemnitee such person against any liability to which any such Adviser Indemnitee person would otherwise be subject by reason of his, her or its willful misfeasancemisconduct, bad faith, faith or gross negligence in the performance of such person’s duties or by reason of such person’s reckless disregard of duty.
d. The obligations and duties under this Agreement. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Manager shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Sub-Adviser as a result of any error of judgment or mistake of law by the Investment Manager with respect to the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Investment Manager for, and the Fund Investment Manager shall indemnify and hold harmless the Sub-Adviser, any affiliated person of the Sub-Adviser and each controlling person of its members, partners, officers, employees and shareholders, and each personthe Sub-Adviser, if any, who controls against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses), to which the Sub-Adviser within the meaning of Section 15 or such affiliated person or controlling person of the Securities Act (collectively, the “Sub-Adviser Indemnitees”)may become subject under the 1933 Act, againstthe 1940 Act, the Advisers Act, the Internal Revenue Code, under any other statute, law, rule or regulation, at common law or otherwise, arising out of the Investment Manager’s responsibilities as investment manager of the Fund (a) to the extent of and hold them harmless fromas a result of the willful misconduct, bad faith, or gross negligence by the Investment Manager, any and all Losses incurred by each of them in so far as such Losses (the Investment Manager’s employees or actions with respect thereto) arise out representatives or any affiliate of or are based upon any person acting on behalf of the Investment Manager, or (ib) as a result of any untrue statement or alleged untrue statement of a material misstatement or omission fact contained in the Fund’s Registration Statement, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund, including any proxy statementamendment thereof or any supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading, if such a statement or omission was made other than in reliance upon and in conformity with written information furnished by the Sub-Adviser, or any other communication to current affiliated person of the Sub-Adviser or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund upon verbal information confirmed by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fundwriting; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such no case is the Investment Manager’s indemnity in favor of the Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence any affiliated person or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing controlling person of the commencement of Sub-Adviser deemed to protect such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (Goldman Sachs Variable Insurance Trust)
Liability and Indemnification. a. Except as expressly set forth North Track shall indemnify and hold Administrator and its controlling persons, if any, harmless from any and all claims, actions, suits, losses, costs, damages, and expenses, including reasonable expenses for counsel, incurred by it in Section 2(o) connection with its acceptance of this Agreement, absent the Sub- Adviser’s material breach of this Agreement in connection with any action or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, omission by it or its officers, directors, partnersemployees, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser hereunder to executeNorth Track, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of acting upon any failure instruction believed by the Sub-Adviser it to exercise the standard have been executed by a duly authorized agent of care set forth North Track or as a result of acting upon information provided by North Track in this Agreement; or (v) any material breach of this Agreementform and under policies agreed to by Administrator and North Track; provided, however, that nothing in (i) to the extent such claims, actions, suits, losses, costs, damages, or expenses relate solely to one or more Funds, such indemnification shall be only out of the assets of that Fund or group of Funds; (ii) this Agreement indemnification shall protect any Adviser Indemnitee against any liability not apply to which such Adviser Indemnitee would otherwise be subject by reason actions or omissions constituting negligence or misconduct on the part of his, her Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give North Track prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, North Track shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld. Administrator shall indemnify and hold harmless North Track from and against any and all claims, demands, expenses, and liabilities which North Track may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of North Track, or its other agents or contractors, and (ii) North Track shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of North Track In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth A. Notwithstanding anything to the contrary contained in Section 2(o) of this Agreement, absent except as may otherwise be provided by the Sub- Adviser’s material breach 1940 Act or any other federal securities law, in the absence of this Agreement or the willful misconduct, bad faith, faith or gross negligence or reckless disregard of the obligations or duties hereunder on the Sub-Adviser's part in the performance of its duties under this Agreement, neither the Sub-Adviser nor any of its shareholders, partners, officers, directors, trustees, employees, agents, consultants or affiliates (its “Affiliates”) shall be liable for any error of judgment or mistake of law or for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust or its or their shareholders, partners, officers, directors, trustees, employees or agents, for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to the extent due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations hereunder or duties hereunder; (iii) any untrue statement of a material fact contained in the failure of the Sub-Adviser to executeProspectus or SAI, proxy materials, advertisements or cause to be executedsales literature, portfolio investment transactions according if such statement was made in reasonable reliance upon information furnished to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure Investment Adviser by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would writing and intended for use therein.
C. Except as may otherwise be subject provided by reason of histhe 1940 Act or any other federal securities law, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The the Investment Adviser and the Fund shall indemnify the Sub-Adviser shall each, severally and each of its membersnot jointly, partnersindemnify and hold harmless the Fund and the Trust, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the “Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s, as applicable, willful misconduct, fraud, reckless disregard or gross negligence in carrying out its obligations under this Agreement.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser Indemnitees”)shall not be responsible or liable (including for indemnification obligations) for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, againstincluding but not limited to nationalization, expropriation, devaluation, seizure or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Trust’s property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and hold them harmless frommarket conditions affecting the execution or settlement of transactions; or acts of war, any and all Losses incurred by each terrorism, insurrection or revolution; or acts of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
E. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Section 7.1. Except as otherwise required by non-waivable provisions of Applicable Law or as expressly set forth in Section 2(o) of this Agreement, absent no Interest Holder shall have any personal liability whatsoever in such Interest Holder’s capacity as an Interest Holder in excess of its capital contribution, whether to the Sub- AdviserCompany, to any of the other Interest Holders, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company, other than arising out of a breach of this Agreement by such Interest Holder.
Section 7.2. None of the Members, the directors or the Officers shall be personally liable for the return of any portion of the capital contributions (or any return thereon) of the Interest Holders and the return, if any, of such capital contributions (or any return thereon) shall be made solely from assets of the Company. None of the Members or the directors or Officers shall be required to pay to the Company or any Interest Holder any deficit in any Interest Holder’s capital account upon dissolution of the Company or otherwise. None of the Members, directors or the Officers shall be liable, responsible or accountable, in damages or otherwise, to any Interest Holder or to the Company for any act performed by such Member, director or such Officer within the scope of the authority conferred on the Members, directors or the Officers by this Agreement, except for gross negligence, fraud, bad faith or a material breach of this Agreement or Agreement.
Section 7.3. The Company shall, to the willful misconductfullest extent permitted by the Act, bad faithindemnify and hold harmless the Interest Holders, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officersMembers, directors, Officers and their respective partners, agentsshareholders, employees members, officers, trustees, advisory board, directors, employees, attorneys and controlling personsagents and other affiliates (collectively, the Sub-Adviser shall not be liable for “Indemnified Parties”) from and against any act loss, expense, damage or omission injury suffered or sustained by them by reason of any acts, omissions or alleged acts or omissions arising out of their activities on behalf of the Company or in furtherance of the course ofinterests of the Company or by reason of the fact that such Person is or was an Interest Holder, Member, director, Officer, employee or agent of the Company, or connected with, rendering services hereunder is or for any losses that may be sustained in was serving at the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any request of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or Company as a director, trustee, member, manager, officer, employee or agent of the Fund another limited liability company, corporation, partnership, joint venture, trust or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesenterprise, membersincluding, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless frombut not limited to, any and all lossesjudgment, claimsaward, damages, liabilities, costs and expenses (including, without limitationsettlement, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyother costs or expenses incurred in connection with the investigation and defense of any actual or threatened action, “Losses”) incurred by each of them in so far as proceeding or claim, unless the acts, omissions or alleged acts or omissions upon which such Losses (actual or actions with respect thereto) arise threatened action, proceeding or claim is based arose out of or are based upon (i) any actual material misstatement or omission in the Fundsuch Indemnified Party’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence or were performed or omitted fraudulently or in bad faith by the Sub-Adviser in the performance of its duties under this Agreement such Indemnified Party or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as constituted a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement. If any claim for indemnification is based on a claim by a third party (a “Third Party Claim”), the Indemnified Party in question shall give prompt written notice thereof to the Company and shall permit the Company to defend and/or settle such Third Party Claim, so long as it does so diligently and in good faith; provided, however, that nothing no compromise or settlement of any claim may be effected by the Company without the Indemnified Party’s consent (which will not be unreasonably withheld, conditioned or delayed) unless the sole relief provided is monetary damages that are paid in this Agreement full by the Company. Any such indemnification shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise only be subject by reason of his, her from the assets or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 insurance of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, Company and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication no Interest Holder shall be required to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided contribute capital to the Adviser or the Fund Company to satisfy any such indemnification. Any such indemnification shall be paid by the Sub-Adviser for inclusion Company in advance of the final disposition of any such documents); (ii) any action action, proceeding or inaction claim upon receipt of an undertaking by or on behalf of the Sub-Adviser Indemnified Party seeking advancement to repay the amount advanced should it ultimately be determined that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking Indemnified Party was not entitled to be indemnified hereunder or under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderAct.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the obligations Adviser, the Fund or duties hereunder on the part Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “"Sub-Adviser Indemnitees”), against, and hold them harmless from, ") against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser's action or are inaction or based upon on the Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations hereunder or duties hereunder; (iii) any untrue statement of a material fact contained in the failure Prospectuses or Statements of the Sub-Adviser to executeAdditional Information, proxy materials, advertisements or cause to be executedsales literature, portfolio investment transactions according if such statement was made in reliance upon information furnished to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure Investment Adviser by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would writing and intended for use therein. Except as may otherwise be subject provided by reason of histhe 1940 Act or any other federal securities law, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser shall indemnify and each of its membershold harmless the Fund and the Trust, partners, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, the “"Fund Indemnitees") against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Sub-Adviser's action or inaction or based on the Agreement; provided however, the Sub-Adviser Indemnitees”)shall not indemnify or hold harmless the Fund Indemnitees for any losses, againstclaims, damages, liabilities or litigation (including reasonable legal and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect theretoother expenses) arise out of or are based upon due to (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in breach by the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Trust of a Fund by the Sub-Adviser for inclusion in such documents); representation or warranty made herein or (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from makingwillful misconduct, as applicablefraud, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct reckless disregard or gross negligence of the Adviser Fund or the Fund Trust in the performance of any of its duties under this Agreement or obligations hereunder. Notwithstanding the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)foregoing, the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section Fund shall not be exclusive of or affect deemed to have waived any other rights to which any person may be entitled by contract or otherwise by right which, under applicable law, and cannot be waived. No Trustee or shareholder of the Trust shall not protect be personally liable for any person against debts, liabilities, obligations or expenses incurred by, or contracted for under the Agreement. No Fund will be liable for any liability to which any such person would otherwise be subject by reason debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under the Agreement. This Section 7 shall survive the termination of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement7.1 Yissum, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its HUJ and their respective officers, directors, partners, agents, employees and controlling personsagents and the Consultant (the “Indemnitees”), the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all claims, actions, demands, losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ legal and accountants’ fees expert fees) made, brought or suffered by the Company or by any third parties arising from or in connection with the Consulting Services, unless caused by the gross negligence or willful misconduct or breach of this Agreement by or of any of the Indemnitees (the “Damages”).
7.2 In the event one or more of the Indemnitees should suffer any Damages, as set forth in Section 7.1 above or will be obligated to pay third parties any amount as compensation for any such Damages, the Company will indemnify such Indemnitee/s and disbursements) (collectivelyhold them harmless from and against any and all such Damages. To be eligible to be indemnified hereunder, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon Yissum and/or other Indemnitees shall (i) any actual material misstatement promptly notify the Company of the relevant claim, action or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documentsproceeding; (ii) the bad faithCompany shall have the right to assume the sole control over the investigation, willful misconduct defense and settlement of such claim, action or gross negligence by proceeding, with the Sub-Adviser in reasonable cooperation of the performance of its duties under this Agreement or Indemnitees, at the reckless disregard of its obligations or duties hereunderCompany’s expense; and (iii) the failure Indemnitees shall not make any admissions or compromise any claim, action or proceeding without the Company’s prior written consent. The Indemnitees shall be entitled to retain their own counsel at their sole cost and expense, without interfering with the Company’s control over the proceedings.
7.3 Except for any liability or obligation under Section 5 (Confidentiality; Publication) and Section 7.1 above, or for the misappropriation of any of the Sub-Adviser to executeCompany’s intellectual property, or cause to any liability resulting from gross negligence or willful misconduct or misrepresentation by the Company under applicable state and securities law, none of the Parties shall be executed, portfolio investment transactions according liable to the requirements of applicable lawother Parties (whether under contract, the Strategytort (including negligence) or otherwise), the Governing Documents for any special, punitive, indirect, incidental or the Procedures; (iv) as a result consequential damages of any failure by kind, including lost profits, business interruption losses, loss of business or loss of data, arising out of or in connection with the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach performance of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which even if such Adviser Indemnitee would otherwise be subject by reason of his, her Party is advised or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 should have known of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutypossibility thereof.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Consulting Agreement (Weed, Inc.)
Liability and Indemnification. a. Except (a) Landlord shall not be liable to Tenant or its directors, shareholders, partners, trustees, members, agents, contractors, subcontractors, employees, licensees, servants, and invitees and all persons and entities claiming through any of these persons or entities (collectively and as expressly set forth in Section 2(o) of this Agreementapplicable, absent "Tenant Party(ies)"), or any person whomsoever, for any injury to person or damage to property on or about the Sub- Adviser’s material breach of this Agreement or Premises caused by the willful misconduct, bad faith, gross negligence or reckless disregard willful misconduct of Tenant or any Tenant Party; and Tenant agrees to indemnify Landlord and hold it harmless from any loss, claim, damage, cost or expense suffered or incurred by Landlord by reason of any such damage or injury.
(b) Landlord and Landlord's agents and employees shall not be liable to Tenant or any Tenant Party for any injury to person or damage to property caused by the obligations Premises (or duties hereunder on the part any portion thereof) becoming out of the Sub-Adviserrepair or by defect in or failure of equipment, pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the Premises, nor shall Landlord be liable to Tenant or any Tenant Party for any loss or damage that may be occasioned by or through the acts or omissions of any other persons whomsoever, excepting only duly authorized employees and agents of Landlord.
(c) Tenant shall indemnify, defend, and hold Landlord and its authorized representatives and their respective officers, directors, shareholders, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officersagents, employees employees, property manager, contractors and shareholdersall persons and entities through any of these persons or entities (collectively and as applicable, "Landlord Party(ies)") harmless from all fines, suits, losses, costs, liabilities, claims, demands, actions, and each person, if any, who controls the Fund or the Adviser within the meaning judgments of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) every kind and character (collectively, "Claims") INCLUDING THOSE CLAIMS RESULTING SOLELY OR IN PART FROM THE NEGLIGENCE OF ANY LANDLORD PARTY (BUT EXCEPTING THOSE CLAIMS RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY LANDLORD PARTY) arising out of or relating (directly or indirectly) to this Lease, the “Adviser Indemnitees”)tenancy created under this Lease or the Premises, againstincluding, and hold them harmless fromwithout limitation:
(1) any breach or default in performance of any obligation on Tenant's part to be performed under this Lease, whether before or during the term of this Lease or after its expiration or earlier termination;
(2) any and all lossesact, claimsomission, damagesnegligence, liabilitiesor misconduct of any Tenant Party, costs and expenses or of any other person entering upon the Premises under or with the express or implied invitation or permission of Tenant;
(3) any alterations, activities, work, or things done, permitted, allowed, or suffered by Tenant Parties in, at, or about the Premises, including the violation by any Tenant Party of any Applicable Laws (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) the Access Laws); and
(collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii4) the bad faith, willful misconduct occupancy or gross negligence use by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure any Tenant Party of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyPremises.
d. The Adviser and the Fund (d) Tenant shall indemnify the Sub-Adviser and each of its membersindemnify, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), againstdefend, and hold them all Landlord Parties harmless fromfrom any Claim for damage to the Improvements or Tenant's personal property, fixtures, furniture, and equipment in the Premises (INCLUDING THOSE CLAIMS RESULTING SOLELY OR IN PART FROM THE NEGLIGENCE OF ANY LANDLORD PARTY (BUT EXCEPTING THOSE CLAIMS RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY LANDLORD PARTY)), to the extent that the damage is covered by ISO Special Form Property Insurance (including any deductible) that Tenant is required to carry under this Lease (or would have been covered had Tenant carried the insurance required under the provisions of this Lease).
(e) If any Landlord Party is made a party to any litigation commenced against any Tenant Party or relating to this Lease or to the Premises, then Tenant shall pay all costs and expenses, including attorneys' fees, court costs and expenses, incurred by or imposed upon the Landlord Party by virtue of the litigation. The amount of all costs and expenses, including attorneys' fees, court costs and expenses is a demand obligation payable by Tenant to Landlord as additional Rent bearing interest at the lower of 18% per annum or the maximum legal contract rate from the date of payment by Landlord until paid by Tenant.
(f) If an employee (full-time, part-time, or temporary) of Tenant suffers an injury at the Premises, Tenant shall cause the injured employee to exhaust all rights under the applicable Workers' Compensation Laws before any claim arising from the injury is asserted against any other party. Tenant shall indemnify, defend, and hold Landlord Parties harmless from any and all Losses incurred Claims suffered by each Landlord Parties arising from any injury(ies) to any of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, Tenant's employees or any other communication to current or prospective investors in the Fund Tenant Parties.
(other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (iig) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach The provisions of this Agreement by Section 15 survive the Adviser expiration or the Fund; provided, however, that nothing in earlier termination of this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason Lease. The indemnification provisions of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under this Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section 15 shall not be exclusive of construed or affect interpreted as in any way restricting, limiting, or modifying Tenant's insurance or other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this AgreementLease and is independent of Tenant's insurance and other obligations under this Lease.
Appears in 1 contract
Samples: Contract of Sale (Ultrak Inc)
Liability and Indemnification. a. Except as expressly (a) Neither the Sub-Adviser nor its shareholders, members, officers, directors, employees, agents, control persons or affiliates of any thereof, shall be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Sub-Advisory Agreement relates except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 2(o36(b)(3) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement 0000 Xxx) or the a loss resulting from willful misconductmisfeasance, bad faith, faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Sub-Advisory Agreement. For the avoidance of doubt and without limiting the generality of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsforegoing, the Sub-Adviser shall not be liable to the Adviser or the Fund for any action taken or failure to act in good faith reliance upon: (i) information, instructions or omission in requests, whether oral or written, with respect to the course of, or connected with, rendering services hereunder or for any losses that may be sustained in Fund made to the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice by the Adviser, the Trust, or the Board; (ii) the advice of and accepts the limitations upon counsel to the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that ; (iii) any written instructions or any resolution of the Fund’s obligations shall be limited to the assets of the Fund and that Board. Furthermore, the Sub-Adviser shall not seek satisfaction be responsible or liable for any failure or delay in performance of any such obligation from its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control including, without limitation, acts of civil or military authority, national emergencies, labor difficulties (other than those related to the shareholders Sub-Adviser’s employees), fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the Fund nor from any other series of the Trust mails, transportation, communication or any Trustees or officer, employee or agent of the Fund or other series of the Trustpower supply.
c. (b) The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, membersits partners, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”)Adviser, against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs costs, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, collectively “Losses”) incurred asserted by any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) the material violation by the Sub-Adviser of applicable law; or (ii) the bad faith, willful misconduct, or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or reckless disregard of its obligations or duties hereunder.
(c) The Adviser shall indemnify the Sub-Adviser and each of its partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser, against, and hold them harmless from, any and all Losses asserted by any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration StatementProspectus, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to executemarketing material, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to written disclosure provided to the Adviser or the Fund by the Sub-Adviser specifically for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser, Trust, or Board’s written instructions to the Sub-Adviser; (iii) the material violation by the Adviser of applicable law; or (iv) the Adviser’s bad faith, willful misconduct misconduct, gross negligence, or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) under this Agreement, the Management Agreement and under any failure by other agreements or documents under which the Adviser has obligations or duties to exercise the standard of care set forth in this Agreement; or Fund.
(vd) any material breach of this Agreement by Additionally, the Adviser or shall indemnify the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject and each of its partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser, against, and hold them harmless from, any and all Losses asserted by reason any third party against the Sub-Adviser in connection with the operation of his, her the Fund in so far as such Losses (or its willful misfeasance, bad faith, gross negligence actions with respect thereto) arise out of or reckless disregard are based upon events that occurred prior to the appointment of dutySub-Adviser as sub-adviser to the Fund.
e. Promptly after receipt (e) Any person, even though also a director, officer, employee, shareholder, member or agent of notice the Sub-Adviser, who may be or become an officer, director, trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or acting on any actionbusiness of the Trust (other than services or business in connection with the Sub-Adviser’s duties hereunder), arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) rendering such services to or 9(d) (acting solely for the “Indemnified Party”)Trust and not as a director, the Indemnified Party willofficer, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) employee, shareholder, member or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing agent of the commencement Sub-Adviser, or one under the Sub-Adviser’s control or direction, even though paid by the Sub-Adviser.
(f) Adviser acknowledges that Sub-Adviser does not guarantee the future performance of such Proceeding; provided thatthe Fund or any specific level of performance, nor the failure to so notify success of Sub-Adviser’s overall management of the Indemnifying Party Fund. Accordingly, Adviser acknowledges and agrees that Sub-Adviser shall not relieve the Indemnifying Party from have any indemnification liability which it may have to the Indemnified Party; legal or financial responsibility for performance or losses except as otherwise provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderherein.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Neither Sub-Adviser, or Adviser nor its officers, directors, partners, agentsemployees, employees and affiliates, agents or controlling personspersons shall be liable to the Trust, each Fund, its shareholders and/or any other person for the acts, omissions, errors of judgment and/or mistakes of law of any other fiduciary and/or person with respect to each Fund.
(b) Neither the Sub-Adviser nor its officers, partners, employees, affiliates, agents or controlling persons or assigns shall not be liable for any act act, omission, error of judgment or omission in the course of, or connected with, rendering services hereunder or mistake of law and/or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in loss suffered by the Trust’s , each Fund, its shareholders and/or any other person in connection with the matters to which this Agreement and Declaration relates; provided that no provision of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations this Agreement shall be limited deemed to the assets of the Fund and that protect the Sub-Adviser shall not seek satisfaction against any liability to the Trust, each Fund and/or its shareholders which it might otherwise be subject by reason of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerwillful misfeasance, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct faith or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or and duties hereunder; under this Agreement.
(iiic) the failure The Trust on behalf of each Fund, hereby agrees to indemnify and hold harmless the Sub-Adviser to executeAdviser, or cause to be executedits partner, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser officers and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, agents and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser IndemniteesIndemnified Parties”) against any and all losses, claims damages or liabilities (including reasonable attorneys fees and expenses), joint or several, relating to the Trust or Fund, to which any such Indemnified Party may become subject under the Securities Act of 1933, as amended (“1933 Act”), againstthe 1934 Act, and hold them harmless fromthe Advisers Act or other federal or state statutory law or regulation, any and all Losses incurred by each of them in so far at common law or otherwise, insofar as such Losses losses, claims, damages or liabilities (or actions with in respect theretothereof) arise out of or are based upon (i1) any act, omission, error and/or mistake of any other fiduciary and/or any other person; or (2) any untrue statement or alleged untrue statement of a material misstatement fact or any omission or alleged omission to state a material fact required to be stated or necessary to make the statements made not misleading in (a) the Fund’s Registration Statement, any proxy statement, the prospectus or any other communication to current filing, (b) any advertisement or prospective investors sales literature authorized by the Trust for use in the offer and sale of shares of each Fund, or (c) any application or other document filed in connection with the qualification of the Trust or shares of each Fund under the Blue Sky or securities laws of any jurisdiction, except insofar as such losses, claims, damages or liabilities (other than a misstatement or actions in respect thereof) arise out of or are based upon any such untrue statement or omission relating to disclosure provided or alleged untrue statement or omission (i) in a document prepared by the Sub-Adviser, or (ii) made in reliance upon and in conformity with information furnished to the Trust by or on behalf of the Sub-Adviser pertaining to or the Fund by originating with the Sub-Adviser for inclusion use in such documentsconnection with any document referred to in clauses (a); , (iib) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (vc).
(d) any material breach of this Agreement by the Adviser or the Fund; providedIt is understood, however, that nothing in this Agreement paragraph 10 shall protect any Sub- Adviser Indemnitee Indemnified Party against, or entitle any Indemnified Party to, indemnification against any liability to the Trust, Fund and/or its shareholders to which such Sub-Adviser Indemnitee would otherwise be subject Indemnified Party is subject, by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties its duties, or by reason of its any reckless disregard of such person’s its obligations and duties under this Agreement or any breach of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Sub-Adviser shall not be liable for any loss to each Fund or the Adviser caused directly or indirectly by circumstances beyond the Sub-Adviser’s reasonable control including, but not limited to, government restrictions, exchange or market rulings, suspensions of trading, acts of civil or military authority, national emergencies, earthquakes, floods or other catastrophes, acts of God, wars or failures of communication or power supply.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the obligations Adviser, the Fund or duties hereunder on the part Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all Losses incurred by each losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses (the Sub-Adviser Indemnitees may become subject at common law or actions with respect thereto) arise otherwise, arising out of the Sub-Adviser's action or are inaction or based upon on the Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents); of a Sub-Adviser representation or warranty made herein, (ii) any action willful misconduct, fraud, reckless disregard or inaction gross negligence of the Sub-Adviser in the performance of any of its duties or obligations hereunder or (iii) any untrue statement of a material fact contained in the Prospectuses or Statements of Additional Information, proxy materials, advertisements or sales literature, if such statement was made in reliance upon information furnished to the Investment Adviser by the Sub-Adviser that in writing and intended for use therein. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser has made or refrained from makingshall indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as applicableamended) (collectively, in good faith pursuant the “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to and consistent with which any of the Adviser’s written instructions to Fund Indemnitees may become subject at common law or otherwise, arising out of the Sub-Adviser's action or inaction or based on the Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (iiiincluding reasonable legal and other expenses) due to (i) any breach by the bad faithFund or the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, willful misconduct fraud, reckless disregard or gross negligence of the Adviser Fund or the Fund Trust in the performance of any of its duties under this Agreement or obligations hereunder. Notwithstanding the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”)foregoing, the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section Fund shall not be exclusive of or affect deemed to have waived any other rights to which any person may be entitled by contract or otherwise by right which, under applicable law, and cannot be waived. No Trustee or shareholder of the Trust shall not protect be personally liable for any person against debts, liabilities, obligations or expenses incurred by, or contracted for under the Agreement. No Fund will be liable for any liability to which any such person would otherwise be subject by reason debts, liabilities, obligations or expenses incurred by, or contracted for another Fund under the Agreement. This Section 7 shall survive the termination of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth Greensteam shall be solely responsible for all materials, equipment, and services necessary for construction, operation, Installation, maintenance, and removal of each Unit and Project hereunder. Greensteam shall be solely responsible for tools, equipment and other property owned, rented or leased by Greensteam or any subcontractor, or employee of either. To the maximum extent permitted by applicable law, Greensteam shall defend, indemnify, and hold harmless Aera, its parents, member companies, Affiliates, and subsidiary companies, and directors, managers, officers, employees, and agents of such companies, against any loss, damage, claim, suit, liability, judgment, and expense (including, but not limited to, attorneys’ fees and other costs of litigation), and any fines, penalties, and assessments arising out of injury, disease, or death of any Persons (including, but not limited to, Greensteam’s employees) or damage to or loss of any property (including, but not limited to, Aera’s existing facilities), or violation of the applicable law of any governmental authority having jurisdiction, resulting from or in Section 2(o) of connection with this Agreement, absent the Sub- Adviser’s material breach of this Program Agreement or the willful misconductperformance or nonperformance of Work associated with any Project under this Program Agreement by Greensteam, bad faithits agents or subcontractors (including, gross but not limited to, employment decisions or employee relations practices or policies of Greensteam, its agents or subcontractors, made or instituted in connection with performance of this Program Agreement), even though caused by the concurrent and/or contributory negligence (whether active or reckless disregard passive or of the obligations any kind or duties hereunder on the part description) or fault of the Sub-Advisera party indemnified, or its officerssubject Notwithstanding any other provision herein, directors, partners, agents, employees and controlling persons, the Sub-Adviser Greensteam shall not be responsible or liable for in any act way, or omission in the course obligated to tender a defense for, any environmental claim arising out of Greensteam's testing for, exposure or discovery of, Hazardous Materials (under Section 2.2 hereinabove or connected withotherwise), rendering services hereunder or for any losses that may be sustained in other environmental condition, which were present at a Site prior to Greensteam's first occupation of such Site. In the purchaseevent of such claim, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations Aera shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of defend any such obligation from the shareholders of the Fund nor from any other series of the Trust claim or any Trustees suit against Greensteam or officerits parents, employee affiliates or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund subsidiary companies and the Adviser and each of their respective trusteesdirectors, membersmanagers, officers, employees and shareholdersagents of such companies. If after Aera has defended any such suit or claim and paid any resulting judgement, and each personit is determined at an arbitration conducted pursuant to Section 15.20 hereunder that the damage was caused by the negligence or willful misconduct of a party indemnified, if any, who controls the Fund or the Adviser within the meaning of Section 15 then Greensteam shall reimburse Aera for Greensteam’s allocable share of the Securities Act of 1933judgment. Notwithstanding any other provision herein, as amended (Aera shall not be responsible or liable in any way for the “Securities Act”) (collectivelycondition, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (alteration or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of any soils or geologic structures in, under, adjacent to or surrounding the Sub-Adviser to execute, Site or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) Route as a result of any failure past, present or future activity on Aera’s Premises, including but not limited to subsidence resulting from such activity. Greensteam agrees that any claim by Aera for defense and indemnity which Greensteam disputes may be brought and determined in the same action, although not required, as the underlying judicial claim. Greensteam expressly waives any legal right that exists to delay the determination of Greensteam’s indemnity and defense obligations to Aera until the underlying claim is finally determined. In no event shall either Party be liable to the other for indirect or consequential damages, including damages for loss of use, revenue or profit, operating costs and facility downtime, or other similar business interruptions, arising directly or indirectly from this Program Agreement or any Site-Specific Agreement. The limitations and exclusions of liability set forth herein shall apply regardless of fault, breach of contract, tort, strict liability or otherwise of a Party. With the exception of environmental claims and suits as detailed above, Greensteam shall promptly tender to Greensteam’s insurance carrier(s), for defense and indemnity of both Greensteam and Aera, any claim mentioned in this Article 9. The Parties expect and desire that such indemnity and defense will be accepted by the Sub-Adviser to exercise insurance carrier(s), and that all such claims will be finally judicially resolved within the standard limits of care set forth insurance stated in this Agreement; or (v) any material breach Article 10 hereinbelow, with apportionment of liability consistent with such final judicial resolution, in which case no subsequent arbitration between the Parties as described in the second paragraph of this Agreement; providedArticle 9 will be necessary nor shall any be pursued. These expectations and desires notwithstanding, howeverthe obligations, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholdersindemnities, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred liabilities assumed by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties Greensteam under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section Article 9 shall not be exclusive limited by any provisions or limits of or affect any other rights to which any person may be entitled insurance required by contract or otherwise by lawArticle 10 below, and shall not protect survive the termination of this Program Agreement. If it is judicially determined that any person against of the indemnity obligations (which Greensteam agrees shall be supported by insurance) under this Article 9 or insurance obligations under Article 10 below are invalid, illegal, or unenforceable in any liability respect, said obligations shall automatically be amended to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence conform to the maximum monetary limits and other provisions in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementapplicable law for so long as the law is in effect.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(oAbsent (i) the Sub-Adviser’s breach of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or (ii) the willful misconduct, bad faith, gross negligence negligence, or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees employees, and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionsustained.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s its Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee employee, or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees employees, and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs costs, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred asserted by each of them any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; or (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii. The Fund is a third party beneficiary of the indemnity granted in this Section 8(c) and the failure of indemnity is intended to cover claims by the Fund or the Adviser against the Sub-Adviser for recovery pursuant to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutysection.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its partners/members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”)Act, against, and hold them harmless from, any and all Losses incurred asserted by each of them any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; or (iii) the bad faith, willful misconduct misconduct, or gross negligence of by the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit lawsuit, or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c8(c) or 9(d8(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c8(c) or 9(d8(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Non Discretionary Investment Sub Advisory Agreement (Blackstone Alternative Investment Funds)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard or gross negligence, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the obligations Adviser, the Fund or duties hereunder on the part Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to the Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”)) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion of a Sub-Adviser representation or warranty made in such documents; this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement, or (iii) any untrue statement of a material fact contained in the Fund’s Prospectus or Statement of Additional Information, proxy materials, advertisements or sales literature, if such statement was made in reliance upon information furnished to the Investment Adviser by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Adviser and the Sub-Adviser shall each, jointly and severally, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Adviser’s or the Sub-Adviser’s action or inaction or based on this Agreement; provided however, the Adviser and Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund or a Trust representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or the Trust in the performance of any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
E. No Trustee of the Trust or prospective investors in shareholder of the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser shall be personally liable for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from makingdebts, as applicableliabilities, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (ALPS Series Trust)
Liability and Indemnification. a. (a) The Portfolio Manager cannot and does not guarantee the future performance of the Portfolio, the success of any investment decision or strategy that the Portfolio Manager may utilize with respect to the Portfolio, or the success of the Portfolio Manager's overall management of the Portfolio. The Issuer understands that the investment decisions made by the Portfolio Manager with respect to the Portfolio are potentially subject to various market, currency, economic, political and business risks, and that such investment decisions may not always be profitable. Except as expressly set forth in Section 2(o) of this Agreementmay otherwise be provided by law, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard none of the obligations Affiliated Persons shall be liable to the Issuer or duties hereunder on the part of the Sub-Adviserany other party in connection with, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon for: (i) any actual material misstatement loss that the Issuer may suffer by reason of any investment decision made or omission other action taken or omitted in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund good faith by the Sub-Adviser for inclusion Portfolio Manager with that degree of care, skill, prudence, and diligence under the circumstances that a prudent person acting in such documentsa similar capacity would use; (ii) any loss arising from the bad Portfolio Manager's adherence to the Issuer's instructions; or (iii) any act or failure to act by the Custodian, any broker(s) or dealer(s) engaging in transactions for the Issuer's, or any other third party (other than its delegees appointed in accordance with the terms of Section 4). The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing in this Agreement will waive or limit any rights that the Issuer may have under those laws.
(b) Notwithstanding anything to the contrary set forth in clause (a) above, the Portfolio Manager shall indemnify and hold harmless each Indemnified Party and the Issuer from and against Indemnified Amounts arising out of or resulting from (i) any breach by the Portfolio Manager of its representations and warranties made in this Agreement, or otherwise made by an officer of the Portfolio Manager pursuant to the terms hereof or thereof, (ii) the failure by the Portfolio Manager to perform any of the duties specifically undertaken by it under this Agreement, (iii) any lender liability claim, suit or action or other similar claim or action arising out of or resulting from any action or omission by the Portfolio Manager with respect to the Securities or the other Pledged Collateral, (iv) any equitable subordination claim, suit or action or other similar claim or action arising out of or resulting from any action or omission by the Portfolio Manager, (v) any failure by the Portfolio Manager to deliver, or cause the Issuer to deliver, in accordance with the Pledge Agreement, any instrument, chattel paper or certificated security evidencing any Pledged Collateral owned by the Issuer within ten(10) days of the acquisition thereof, or (vi) the Portfolio Manager's gross negligence or willful misconduct, excluding, however, in each case, (1) Indemnified Amounts to the extent arising out of or resulting from the willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement such Indemnified Party or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result Issuer of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasanceobligations and duties or (2) resource for uncollectible Securities (unless such Securities are uncollectible as a result of any breach, bad faithfailure or claim described in clause (i), gross negligence (ii), (iii), (iv), (v) or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members(vi) above) or, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 (3) indemnification of the Securities Act Issuer or Indemnified Party for lost profits or for consequential, special or punitive damages or (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, 4) any and all Losses incurred by each of them in so far as such Losses income or franchise taxes (or actions any interest or penalties with respect thereto) arise out or other taxes on or measured by the gross or net income or receipts of such Indemnified Party or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, Issuer or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth withholding taxes. The agreements contained in this Agreement; or (vSection 11(b) shall survive the Termination Date and the payment of all amounts due under any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyTransaction Document.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (Arm Financial Group Inc)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) may otherwise be provided by the Investment Company Act or other federal securities law, neither the Subadviser nor any of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, members or employees and controlling persons, the Sub-Adviser (its "Affiliates") shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Manager or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-Adviser acknowledges error of judgment or mistake of law by the Subadviser or its Affiliates with respect to the Series, except that it has received notice of and accepts nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Subadviser or its Affiliates for, and the Subadviser agrees to indemnify and hold harmless the assets Manager, any affiliated person of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, Manager and each person, if any, who controls the Fund or the Adviser who, within the meaning of Section 15 of the Securities Act of 1933, as amended 1933 (the “Securities "1933 Act”) (collectively, the “Adviser Indemnitees”"), againstcontrols ("controlling person") the Manager, and hold them harmless from, against any and all losses, claims, claims damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses), costs and expenses (includingto which the Manager or such affiliated person or controlling person may become subject under the 1933 Act, without limitationthe Investment Company Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelythe Advisers Act, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise under any other statute, at common law or otherwise, arising out of or are based upon (i) on any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser Subadviser, any of the Subadviser's employees or representatives or any affiliate of or any person acting on behalf of the Subadviser in the performance of its duties under this Agreement or obligations hereunder. In no case shall the reckless disregard of its obligations or duties hereunder; (iii) the failure Subadviser's indemnity in favor of the Sub-Adviser to execute, Manager or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents any affiliated person or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 controlling person of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementManager, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence provision of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall be deemed to protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s its duties or by reason of its reckless disregard of such person’s its obligations and duties under this Agreement. Except as may otherwise be provided by the Investment Company Act or other federal securities law, neither the Manager nor any of its officers, members or employees (its "Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Subadviser as a result of any error of judgment or mistake of law by the Manager or its Affiliates with respect to the Series, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Manager or its Affiliates for, and the Manager agrees to indemnify and hold harmless the Subadviser and any affiliated person or controlling person of the Subadviser against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses), to which the Subadviser or such affiliated person or controlling person may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or under any other statute, at common law or otherwise, arising out of or based on any willful misconduct, bad faith, or gross negligence by the Manager, any of the Manager's employees or representatives or any affiliate of or any person acting on behalf of the Manager in the performance of its duties or obligations hereunder. In no case shall the Manager's indemnity in favor of the Subadviser or any affiliated person or controlling person of the Subadviser, or any other provision of this Agreement, be deemed to protect such person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement. Promptly after receipt by an indemnified party under this Section 12 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 12, notify the indemnifying party of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from liability which it may have to any indemnified party otherwise than under this Section 12. In case any such action is brought against any indemnified party, and it notified the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish and unless the indemnified party releases the indemnifying party from any further obligations under this Section 12 in connection with that action, assume the defense thereof, with counsel satisfactory to such indemnified party. After notice from the indemnifying party of its intention to assume the defense of an action, the indemnified party shall bear the expenses of any additional counsel obtained by it, and the indemnifying party shall not be liable to such indemnified party under this section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation.
Appears in 1 contract
Liability and Indemnification. a. 4.7.1 Except as expressly set forth otherwise provided by law, no Member, Manager or officer or agent of any Member, Manager or officer shall be liable, responsible, or accountable in Section 2(o) of this Agreement, absent any way for damages or otherwise to the Sub- Adviser’s material breach of this Agreement Joint Venture or the willful misconduct, bad faith, gross negligence or reckless disregard to any of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable Members for any act or omission failure to act pursuant to this Agreement or otherwise unless there is a final, non-appealable judicial determination that: (i) such Person acted in bad faith; (ii) the course ofconduct of such Person constituted intentional misconduct or a knowing violation of law; (iii) such Person gained a financial benefit to which such Person was not legally entitled; or (iv) such Person failed to perform his or her duties with respect to distributions under Section 18-607 of the Delaware Act, or connected with, rendering services hereunder or for any losses in good faith and with that may be sustained degree of care that an ordinarily prudent person in the purchase, holding or sale of any positiona like position would use under similar circumstances.
b. 4.7.2 The Sub-Adviser acknowledges that it has received notice of Joint Venture shall indemnify, defend, and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any hold harmless each of the Fund’s obligations shall be limited to the assets of the Fund Members, Managers, officers and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or each agent of the Fund a Member, Manager or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesofficer against third parties (severally, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (Indemnitee” and collectively, the “Adviser Indemnitees”), againstfrom and against any claims, and hold them harmless from, any and all losses, claimsliabilities, damages, liabilitiesfines, costs penalties, costs, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsdisbursements of counsel and other professionals) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of or are based upon in connection with: (ia) such Indemnitee’s status as a Member, Manager or officer of the Joint Venture; (b) any actual material misstatement act or omission in the Fund’s Registration Statement, any proxy statement, or communication failure to current or prospective investors in the Fund relating act by an Indemnitee pursuant to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (vc) any material breach of this Agreement; providedclaims, howeverdamages, that nothing liabilities, costs or expenses incurred by the Indemnitee in this Agreement shall protect any Adviser Indemnitee against any liability connection with past or present services to which such Adviser Indemnitee would otherwise be subject the Joint Venture to the fullest extent permitted by reason of hislaw, her or its willful misfeasanceexcept for gross negligence, bad faith, gross negligence or willful misfeasance, reckless disregard of duty.
d. The Adviser and duties or willful violation of law having a material adverse effect on the Fund Joint Venture by such Indemnitee; provided, further, that an Indemnitee shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, not be entitled to indemnification hereunder if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act there is a judicial determination that such Person’s actions or omissions to act is set forth in clauses (collectively, the “Sub-Adviser Indemnitees”i), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making), as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutySection 4.7.1 above.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent Absent the Sub- Sub-Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far insofar as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission of material fact in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in any reports filed with the Fund SEC relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any Adviser’s material breach of this Agreement; provided, however, that nothing Agreement including without limitation the Strategy or Procedures or any representation or warranty contained in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyAgreement.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”)Act, against, and hold them harmless from, any and all Losses incurred asserted by each of them any third party in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in reports filed with the Fund SEC (other than a material misstatement or omission of material fact relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of by the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; hereunder or (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any Adviser’s material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyAgreement.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (FS Series Trust)
Liability and Indemnification. a. Except The Sub-Adviser shall bear, and be responsible for, and hold harmless and indemnify the Adviser, the Trust and their respective affiliates, directors, officers, shareholders, employees or agents (each, an “Indemnified Party”) from any loss, liability, cost, damage or expense (including attorneys’ fees and costs) suffered by any Indemnified Party as expressly set forth in Section 2(oa result of: (i) of this Agreement, absent the Sub- Sub-Adviser’s material breach of this Agreement Agreement; and (ii) any untrue statement of a material fact (or the willful misconductan omission of such a statement), bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, related to the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth , contained in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statementProspectus, or communication to Statement of Additional Information, or any amendment or supplement thereto, if such statement or omission was made in reliance on Sub-Adviser’s current Form ADV or prospective investors in the Fund relating to disclosure information provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; to the Adviser (ii) whether the bad faith, willful misconduct or gross negligence information is furnished by the Sub-Adviser in the performance of its duties under this Agreement writing or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the through obtaining Sub-Adviser; (iii’s affirmation or approval of such information) for purposes of inclusion in any of the bad faithforegoing documents and filings. For purposes of this Section, material breach shall include, without limitation, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence on the Sub-Adviser’s part in the performance of such person’s duties or by reason of its duties, reckless disregard of such person’s its obligations and duties under this Agreement, violation of applicable law, and any breaches of the representations, warranties and covenants of the Sub-Adviser hereunder. Sub-Adviser’s obligations contained in this Section 8 shall survive the expiration or termination of this Agreement.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Trust for Professional Managers)
Liability and Indemnification. a. (a) Except as expressly set forth in Section 2(o) may otherwise be provided by the 1940 Act or any other federal securities law, Subadviser, including any of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard its affiliates and any of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agentsemployees, employees consultants, or agents thereof and controlling persons, the Subany Subadviser-Adviser Delegatee (as defined below) shall not be liable for any act or omission in the course oflosses, claims, damages, liabilities, or connected with, rendering services hereunder litigation (including legal and other expenses) incurred or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon suffered by the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust Investment Manager, or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons thereof (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) ) (collectively, the “Adviser Fund and Investment Manager Indemnitees”)) as a result of any error of judgment or mistake of law by Subadviser with respect to the Fund or any act or omission by Subadviser in good faith and believed by it to be authorized or within its discretion, againstrights or powers conferred by this Agreement or in accordance with specific directions or instructions from the Investment Manager or the officers or trustees of the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive, or limit the liability of Subadviser for, and Subadviser shall indemnify and hold them harmless from, the Fund and Investment Manager Indemnitees against any and all losses, claims, damages, liabilities, costs or litigation (including reasonable legal and expenses other expenses) to which any of the Fund and Investment Manager Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise arising out of or based on (includingi) any willful misconduct, without limitationbad faith, reckless disregard, or gross negligence of Subadviser in the performance of any of its duties or obligations hereunder; (ii) any untrue statement of a material fact regarding Subadviser contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund or the omission to state therein a material fact regarding Subadviser known to Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon written information furnished to Investment Manager or the Fund by Subadviser Indemnitees (as defined below) for use therein; provided, however, that Subadviser has had a reasonable attorneys’ opportunity to review information regarding Subadviser contained in the Prospectus and accountants’ fees SAI, proxy materials, reports, advertisements, sales literature or other materials pertaining to the Fund as set forth in section 11 and disbursementsthe Investment Manager has accepted all material (in the opinion of the Subadviser) comments from Subadviser regarding such disclosure; (iii) any violation of federal or state statutes or regulations by Subadviser and (iv) any material breach of the terms of this Agreement by Subadviser. It is further understood and agreed that Subadviser may rely upon information furnished to it by Investment Manager that it reasonably believes to be accurate and reliable; provided, however, that Subadviser shall be liable for any loss incurred by the Fund, the Investment Manager or their respective affiliates to the extent such losses arise out of any negligent act or omission directly attributable to Subadviser which results directly in an error in the net asset value of the Fund. The federal securities laws impose liabilities in certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which Investment Manager may have under any securities laws. Neither Subadviser nor any Subadviser Indemnitees (as defined below) shall be liable for any loss or damage arising or resulting from the acts or omissions of the custodian of the Fund, any broker, financial institution or any other third party with or through whom Subadviser arranges or enters into a transaction in respect of the Fund, except to the extent that Subadviser or its affiliate instructed such broker, financial institution or third party to take such action or omission and such action or omission constitutes willful misconduct, bad faith, reckless disregard, or gross negligence of Subadviser. Investment Manager understands and acknowledges that Subadviser does not warrant that the portion of the assets of the Fund managed by Subadviser will achieve any particular rate of return or that its performance will match any benchmark index or other standard or objective.
(b) Except as may otherwise be provided by the 1940 Act or any other federal securities law, Investment Manager and the Fund shall not be liable for any losses, claims, damages, liabilities, or litigation (including legal and other expenses) incurred or suffered by Subadviser or any of its affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) or controlling persons (as described in Section 15 of the 1933 Act) (collectively, “LossesSubadviser Indemnitees”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure error of judgment or mistake of law by Investment Manager with respect to the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedFund, however, except that nothing in this Agreement shall protect operate or purport to operate in any Adviser Indemnitee way to exculpate, waive, or limit the liability of Investment Manager for, and Investment Manager shall indemnify and hold harmless Subadviser Indemnitees against any liability and all losses, claims, damages, liabilities, or litigation (including reasonable legal and other expenses) to which such Adviser Indemnitee would any of Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or under any other statute, at common law, or otherwise be subject by reason arising out of his, her or its based on (i) any willful misfeasancemisconduct, bad faith, reckless disregard, or gross negligence of Investment Manager in the performance of any of its duties or reckless disregard obligations hereunder; (ii) any untrue statement of duty.
d. The Adviser a material fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund shall indemnify or the Sub-Adviser and each of its membersomission to state therein a material fact known to Investment Manager which was required to be stated therein or necessary to make the statements therein not misleading, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as unless such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement statement or omission concerned Subadviser and was made in the Fund’s Registration Statement, any proxy statement, or any other communication reliance upon written information furnished to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser Investment Manager or the Fund by the Sub-Adviser Subadviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from makinguse therein, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct any violation of federal or gross negligence of the Adviser state statutes or regulations by Investment Manager or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; Fund, (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of the terms of this Agreement by Investment Manager, (v) Subadviser acting in accordance with any instruction or direction provided by the Adviser Investment Manager or the Board, or (vi) the actions or omissions of any other subadviser to the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after (c) After receipt of notice by Investment Manager or Subadviser, its affiliates, or any officer, director, employee, or agent of any actionof the foregoing, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding entitled to indemnification as stated in (each a “Proceeding”) by a party seeking to be indemnified under Section 9(ca) or 9(d(b) above (the “Indemnified Party”), ) of notice of the Indemnified Party willcommencement of any action, if a claim in respect thereof is to be made against a party against whom any person obligated to provide indemnification is sought under Section 9(c) or 9(d) this section (the “Indemnifying Party”) ), such Indemnified Party shall notify the Indemnifying Party in writing of the commencement thereof as soon as practicable after the summons or other first written notification giving information of such Proceedingthe nature of the claim that has been served upon the Indemnified Party; provided that, that the failure to so notify the Indemnifying Party shall will not relieve the Indemnifying Party from any indemnification liability which it may have under this section, except to the extent that the omission results in a failure of actual notice to the Indemnifying Party and such Indemnifying Party is damaged solely as a result of the failure to give such notice. The Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel satisfactory to the Indemnified Party; provided that Party to represent the Indemnified Party in the proceeding, and shall pay the fees and disbursements of such party is not materially prejudiced counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (1) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (2) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation by such failure both parties by the same counsel would be inappropriate due to notifyactual or potential differing interests between them. No The Indemnifying Party shall not be liable under this section for any settlement of any Proceeding entered into proceeding effected without its written consent, which consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive unreasonably withheld.
(d) Under no circumstances shall any party hereto be liable to another for special, punitive or consequential damages, arising under or in connection with this Agreement, even if previously informed of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance possibility of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementdamages.
Appears in 1 contract
Samples: Subadvisory Agreement (Columbia Funds Series Trust I)
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence or reckless disregard of the obligations or duties hereunder on the part of neither the Sub-Adviser, or Adviser nor any of its officers, directors, partners, agentsaffiliates, employees or consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and controlling personsother expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the Sub-Adviser or its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Sub-Adviser shall not be liable for any act or omission in indemnify and hold harmless the course ofInvestment Adviser, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser Trust, and each of their respective trustees, members, officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Adviser Fund Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or the Trust in the Fund’s Registration Statement, performance of any proxy statement, of their duties or communication to current or prospective investors obligations hereunder.
C. Notwithstanding anything in the Fund relating to disclosure provided this Agreement to the Adviser or the Fund by contrary contained herein, the Sub-Adviser shall not be responsible or liable for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure, or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
D. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations Nothing contained herein shall be limited ----------------------------- deemed to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee you against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her the Trust or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability Trust's shareholders to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person you would otherwise be subject by reason of willful misconductmisfeasance, bad faith or gross negligence in the performance of such person’s your duties hereunder, or by reason of its your reckless disregard of such person’s your obligations and duties hereunder.
(b) You hereby agree to indemnify and hold harmless the Trust and its officers and Trustees against any and all losses, liabilities, damages and claims arising out of or based upon any untrue or alleged untrue statement or representation made (except for such statements made in reliance on any Registration Statement, Amendments thereto, or sales material supplied by the Trust), any failure to deliver a currently effective Prospectus, or the use of any unauthorized sales literature by any of your officers, employees or agents in connection with the offer or sale of Fund shares. You shall reimburse each such person for any legal or other expenses reasonably incurred in connection with investigating or defending any such loss, liability, damage or claim.
(c) If a claim for indemnification is to be made against you by a party entitled to indemnification under this Agreementsection ("indemnified party"), such indemnified party will promptly notify you in writing of the commencement of any action in which indemnification may be sought, and the omission to so notify you will not relieve you from any liability under this section, except to the extent that the omission results in a failure of actual notice to you and you are damaged solely as a result of the failure to give such notice.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfraud, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Advisergross negligence, or its officers, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser nor any of its officers, affiliates, employees or consultants (its “Affiliates”) shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including reasonable legal and other expenses) incurred or suffered by the course ofInvestment Adviser, the Fund or connected with, rendering services hereunder the Trust as a result of any error of judgment or for any losses that may be sustained action or inaction taken in good faith by the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of or its Affiliates with respect to each Fund. It is further understood and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and agreed that the Sub-Adviser shall not seek satisfaction of have no duty, responsibility or liability what so ever with respect to any such obligation from the shareholders of the Fund’s assets or property not contained in the Fund nor from Account.
B. Except as may otherwise be provided by the 1940 Act or any other series of federal securities law, the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Investment Adviser shall indemnify and hold harmless the Fund and the Adviser and each of their respective trusteesSub-Adviser, members, its officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 19331933 Act, as amended (the “Securities 1933 Act”)) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion of a Sub-Adviser representation or warranty made in such documents; this Agreement, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties or obligations under this Agreement, or (iii) any untrue statement of a material fact contained in the Fund’s Prospectus or Statement of Additional Information, proxy materials, advertisements or sales literature, if such statement was made in reliance upon information furnished to the Investment Adviser by the Sub-Adviser in writing and intended for use therein.
C. Except as may otherwise be provided by the 1940 Act or any other federal securities law, the Investment Adviser and the Sub-Adviser shall each, jointly and severally, indemnify and hold harmless the Fund and the Trust, their officers, employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Fund Indemnitees may become subject at common law or otherwise, arising out of the Investment Adviser’s or the Sub-Adviser’s action or inaction or based on this Agreement; provided however, the Investment Adviser and Sub-Adviser shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any breach by the Fund or the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the performance of any of its duties or obligations hereunder.
D. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the reckless disregard of its obligations Investment Adviser or duties hereunder; (iii) the failure Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to executenationalization, expropriation, devaluation, seizure or cause to be executedsimilar action by any governmental authority, portfolio investment transactions according to de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the requirements of applicable law, the Strategy, the Governing Documents Trust’s property; or the Procedures; (iv) as a result breakdown, failure or malfunction of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreementutilities or telecommunications systems; or (v) any material breach order or regulation of this Agreementany banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; providedor acts of war, howeverterrorism, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason insurrection or revolution; or acts of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementGod, or any other communication to current similar event.
E. No Trustee or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence shareholder of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its Trust shall be personally liable for any debts, liabilities, obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; expenses incurred by, or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section contracted for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. A. Except as expressly set forth may otherwise be provided by the 1940 Act or any other federal securities law, in Section 2(o) the absence of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faithfaith or gross negligence, gross negligence neither the Sub-Adviser nor any of its officers, affiliates, employees or reckless disregard consultants (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) incurred or suffered by the Investment Adviser, the Fund or the Trust as a result of any error of judgment or for any action or inaction taken in good faith by the obligations Sub-Adviser or duties hereunder on its Affiliates with respect to each Fund.
B. Except as may otherwise be provided by the part of 1940 Act or any other federal securities law, the Investment Adviser shall indemnify and hold harmless the Sub-Adviser, or its officers, directorsemployees, partnersconsultants, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities Act”amended) (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Sub-Adviser Indemnitees may become subject at common law or otherwise, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of the Sub-Adviser’s action or are inaction or based upon on this Agreement; provided however, the Investment Adviser shall not indemnify or hold harmless the Sub-Adviser Indemnitees for any losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) due to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund breach by the Sub-Adviser for inclusion in such documents; of a Sub-Adviser representation or warranty made herein, (ii) the bad faithany willful misconduct, willful misconduct fraud, reckless disregard or gross negligence by of the Sub-Adviser in the performance of any of its duties under this Agreement or the reckless disregard of its obligations hereunder or duties hereunder; (iii) any untrue statement of a material fact contained in the failure Prospectuses or Statements of the Sub-Adviser to executeAdditional Information, proxy materials, advertisements or cause to be executedsales literature, portfolio investment transactions according if such statement was made in reliance upon information furnished to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure Investment Adviser by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would writing and intended for use therein.
C. Except as may otherwise be subject provided by reason of histhe 1940 Act or any other federal securities law, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser shall indemnify and each of its membershold harmless the Fund and the Trust, partners, their officers, employees and shareholdersemployees, and each personconsultants, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended) (collectively, “Fund Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the “Fund Indemnitees may become subject at common law or otherwise, arising out of the Sub-Adviser’s action or inaction or based on this Agreement; provided however, the Sub-Adviser Indemnitees”)shall not indemnify or hold harmless the Fund Indemnitees for any losses, againstclaims, damages, liabilities or litigation (including reasonable legal and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect theretoother expenses) arise out of or are based upon due to (i) any material misstatement breach by the Fund or omission the Trust of a Fund representation or warranty made herein or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or Trust in the Fundperformance of any of its duties or obligations hereunder.
E. Notwithstanding anything in this Agreement to the contrary contained herein, the Sub-Adviser shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Investment Adviser or the Trust resulting from any event beyond the reasonable control of the Sub-Adviser or its agents, including but not limited to nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Trust’s Registration Statementproperty; or the breakdown, failure or malfunction of any proxy statementutilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other communication similar event.
F. No Trustee or shareholder of the Trust shall be personally liable for any debts, liabilities, obligations or expenses incurred by, or contracted for under this Agreement.
G. The Investment Adviser, the Trust and the Funds (collectively “Customer”) understand that certain provisions of this Agreement including, without limitation, this section of this Agreement, may serve to current or prospective investors in limit the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by potential liability of the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by Adviser. Customer has had the opportunity to consult with Sub-Adviser as well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. Customer further understands that certain federal and state securities laws including, but not limited to, the Advisers Act, may impose liability or allow for legal remedies even where the Sub-Adviser has made or refrained from making, as applicable, acted in good faith pursuant to and consistent with that the Adviser’s written instructions to the Subrights under those laws may be non-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing waivable. Nothing in this Agreement shall protect shall, in any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject way, constitute a waiver or limitation by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice Customer of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability rights which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of so limited or affect any other rights to which any person may be entitled by contract or otherwise by waived in accordance with applicable law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) 9.01 Subject to other provisions of this AgreementArticle 9 and provided Closing has occurred and the Vendor has received payment from the Purchaser of the Purchase Price, absent as adjusted, pursuant to Clause 4., the Sub- Adviser’s material Vendor shall:
(a) indemnify and save harmless the Purchaser and its Other Indemnitees from and against all Losses and Liabilities which the Purchaser and its Other Indemnitees suffer, sustain, pay or incur as a consequence of a breach of a representation and warranty made by the Vendor in Clause 8.01 or 8.02 or a breach by the Vendor of any of the covenants made by it in this Agreement; and
(b) be liable for, and indemnify and save harmless the Purchaser and its Other Indemnitees from and against, all Claims made against the Purchaser and its Other Indemnitees as a consequence of a breach of a representation and warranty made by the Vendor in Clause 8.01 or 8.02 or a breach by the Vendor of any of the covenants made by it in this Agreement and all Losses and Liabilities which the Purchaser and its Other Indemnitees suffer, sustain, pay or incur as a consequence of such Claims; except to the willful misconduct, bad faith, extent reimbursed (or reimbursable) by insurance maintained by the Purchaser or caused by the gross negligence or reckless disregard wilful misconduct of the obligations Purchaser or duties hereunder its Other Indemnitees. The indemnity granted by the Vendor herein, however, is not a title warranty and shall not provide any remedy in respect of Losses suffered by the Purchaser or its Other Indemnitees or its successors or assigns as a result of a failure of title to the Assets or an encumbrance or Burden on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionAssets.
b. 9.02 The Sub-Adviser acknowledges that it has received notice Purchaser shall:
(a) indemnify and save harmless the Vendor and its Other Indemnitees from and against all Losses and Liabilities which the Vendor and its Other Indemnitees suffer, sustain, pay or incur as a consequence of a breach of a representation and accepts warranty made by the limitations upon Purchaser in Clause 8.01 or 8.03 or a breach by the Fund’s liability set forth in the Trust’s Agreement and Declaration Purchaser of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall covenants made by it in this Agreement;
(b) be limited liable for, and indemnify and save harmless the Vendor and its Other Indemnitees from and against, all Claims made against the Vendor and its Other Indemnitees as a consequence of a breach of a representation and warranty made by the Purchaser in Clause 8.01 or 8.03 or a breach by the Purchaser of any of the covenants made by it in this Agreement and all Losses and Liabilities which the Vendor and its Other Indemnitees suffer, sustain, pays or incur as a consequence of such Claims; and
(c) if Closing occurs, be liable for, and indemnify and save harmless the Vendor and its Other Indemnitees from and against, all Claims made against the Vendor and its Other Indemnitees by a person (other than a Party) in respect of a matter relating to the assets Assets which occurs on or after the Closing Date and all Losses and Liabilities which the Vendor and its Other Indemnitees suffer, sustain, pay or incur as a consequence of such Claims other than anything directly related to or connected with the 3-32 Well; except to the extent reimbursed (or reimbursable) by insurance maintained by the Vendor or caused by the gross negligence or wilful misconduct of the Fund and that the Sub-Adviser shall Vendor.
9.03 The Purchaser is not seek satisfaction of relying upon any such obligation from the shareholders representation or warranty of the Fund nor from any other series Vendor as to the condition, environmental or otherwise, of the Trust or any Trustees or officerAssets, employee or agent except as is specifically made pursuant to Subclause 8.02(j). Notwithstanding Clause 9.01, but subject to the Purchaser's right under this Article 9 in respect of the Fund or other series of representation and warranty in Subclause 8.02(j), the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each personPurchaser further agrees that, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectivelyClosing occurs, the “Adviser Indemnitees”), against, Purchaser shall:
(a) be solely liable and hold them responsible for; and
(b) indemnify and save the Vendor and its Other Indemnitees harmless from, from any and all lossesLosses they suffer, claimssustain, damagespay or incur in respect of all Environmental and Reclamation Liabilities (whether related to acts or omissions occurring before, liabilitieson or after the Effective Time), costs and expenses (including, without limitation, reasonable attorneys’ damage from or removal of hazardous or toxic substances, pollution, clean-up, abandonment of the Wells and accountants’ fees reclamation , but excluding anything directly xxxxxed to or connected with the 3-32 Well.
9.04 The indemnification obligations of Vendor under Clause 9.01 are subject to the following restrictions and disbursementslimitations:
(a) (collectivelyThe Purchaser shall not be entitled to seek indemnification from the Vendor pursuant to Clause 9.01 in respect of any act, “Losses”) incurred by each of them in so far as such Losses (omission, circumstance or actions with respect thereto) arise out of other matter actually known to the Purchaser prior to or are based upon (i) at Closing or any actual material misstatement or omission matter disclosed in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund Data Room.
(b) No claim by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement Purchaser shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party Vendor pursuant to Clause 9.01 in writing respect of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement Vendor's breach of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderrepresentation or warranty in Clause 8.01 or 8.02 or a covenant contained in Clause 10.01, 10.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pioneer Natural Resources Co)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent A. Lessee assumes the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard risk of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited inability to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) operate as a result of any power failure by at the Sub-Adviser Site or any failure of Lessee or Lessee’s Equipment for any reason, and agrees to exercise the standard indemnify and hold Lessor harmless from all damages and costs of care set forth in this Agreement; defending any claim or (v) suit for damages of any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee kind asserted against any liability to which such Adviser Indemnitee would otherwise be subject Lessor by reason of hissuch failure, her or its willful misfeasanceincluding, bad faithbut not limited to, gross negligence or reckless disregard of dutybusiness interruption, damage to other lessees’ equipment, and attorneys’ fees.
d. The Adviser B. To the maximum extent allowed by law, Xxxxxx shall defend, indemnify, and the Fund shall indemnify the Sub-Adviser save harmless Lessor and each of its members, partners, officers, officials, independent contractors, agents and employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, ) from and hold them harmless against all Charges (as defined below) that arise in any manner from, in connection with, or out of this Agreement as a result of acts or omissions of Lessee or anyone directly or indirectly employed by Lessee or anyone for whose acts any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of may be liable. In performing its duties under this Agreement or the reckless disregard of Paragraph B, Lessee shall at its obligations or duties hereunder; (iv) any failure by the Adviser sole expense defend Indemnitees with legal counsel reasonably acceptable to exercise the standard of care set forth Lessor.
C. As used in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; providedSECTION SEVEN, however“Charges” means claims, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of hisjudgments, her or its willful misfeasancecosts, bad faithdamages, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice losses, demands, liabilities, obligations, fines, penalties, royalties, settlements, and expenses. Also included without limitation within “Charges” are interest and reasonable attorneys’ fees assessed as part of any actionsuch item, arbitrationand amounts for alleged violations of sedimentation, claim, demand, dispute, investigation, lawsuit pollution or other proceeding (each a “Proceeding”) by a party seeking environmental or pollution laws and regulations, including but not limited to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing any such alleged violation that arises out of the commencement handling, transportation, deposit, or delivery of such Proceeding; provided that, the failure to so notify items or materials that are the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement subject of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
D. This SECTION SEVEN shall not require Lessee to indemnify or hold harmless Indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence, in whole or in part, of Indemnitees.
Appears in 1 contract
Samples: Lease Agreement
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this AgreementLinguagen shall indemnify, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductdefend and hold harmless MSSM and its trustees, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partnersmedical and professional staff, agentsemployees, employees students and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of agents and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteessuccessors, members, officers, employees heirs and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended assigns (the “Securities Act”) (collectively, the “Adviser Indemnitees”), againstfrom and against any claim, and hold them harmless fromliability, cost, expense, damage, deficiency, loss, or obligation, of any and all losses, claims, damages, liabilities, costs and expenses kind or nature (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursementsother costs and expenses of defense) (collectively, “LossesClaims”) incurred by each or imposed upon the Indemnitees or any one of them in so far as such Losses (connection with any claims, suits, actions, demands or actions with respect thereto) arise out of or are based upon judgments: (i) any actual material misstatement arising out of the design, production, manufacture, sale, use in commerce or omission in the Fund’s Registration Statementhuman clinical trials, any proxy statementlease, or communication to current promotion by Linguagen or prospective investors in the Fund relating to disclosure provided to the Adviser by a licensee, Affiliate or the Fund by the Sub-Adviser for inclusion in such documents; agent of Linguagen of any Licensed Product, or (ii) arising out of any other activities to be carried out pursuant to this Agreement.
b. Linguagen’s indemnification under subsection 9. a.(i), above, shall apply to any liability, damage, loss or expense whether or not it is attributable to the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure negligent activities of the Sub-Adviser Indemnitees. Linguagen’s indemnification under subsection a (ii), above, shall not apply to executeany liability, damage, loss or cause to be executed, portfolio investment transactions according expense to the requirements of applicable law, extent that it is attributable to the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard intentional misconduct of dutythe Indemnitees.
d. The Adviser c. HHMI, and the Fund shall indemnify the Sub-Adviser and each of its members, partnerstrustees, officers, employees and shareholdersemployees, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act agents (collectively, the “Sub-Adviser HHMI Indemnitees”), againstwill be indemnified, defended by counsel acceptable to HHMI, and hold them held harmless fromby Linguagen from and against any Claims based upon, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise arising out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statementof, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission otherwise relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or any sublicense, including without limitation any cause of action relating to product liability. The previous sentence will not apply to any Claim that is determined with finality by a court of competent jurisdiction to result solely from the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard willful misconduct of dutyan HHMI Indemnitee.
e. Promptly after receipt of notice of d. Linguagen shall, at its own expense, provide attorneys reasonably acceptable to MSSM or HHMI, as the case may be, to defend against any action, arbitration, claim, demand, dispute, investigation, lawsuit actions brought or other proceeding (each a “Proceeding”) by a filed against any party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent hereunder with respect to which the subject of indemnity may be sought hereundercontained herein, whether or not such actions are rightfully brought.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser Landlord shall not be liable for any losses, damages, injuries or accidents of any kind however or by whatever or whomever caused, arising from any occurrence on or about the Demised Premises or the occupancy or uses by Tenant of the Demised Premises or caused by any act or omission in of Tenant, its agents, servants, employees, assignees, customers or invitees, unless caused by the course of, gross negligence of Landlord and covered by casualty or connected with, rendering services hereunder or for liability insurance. Notwithstanding any losses that may be sustained in the purchase, holding or sale other provision of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited this Lease to the assets of contrary, except to the Fund and that the Sub-Adviser shall not seek satisfaction of extent expressly prohibited by law, Tenant hereby waives any such obligation from the shareholders of the Fund nor from any other series of the Trust claim it might have against Landlord or any Trustees or officer, employee or agent of the Fund or other series Landlord, for any consequential damages sustained by Tenant arising out of the Trust.
c. The Sub-Adviser loss or damage to any person or property of Tenant. In addition, Tenant agrees only to look to Landlord’s interest in the Demised Premises for recovery of any judgment from Landlord, it being specifically agreed that Landlord shall not be personally liable for any such judgment. Tenant shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholdersLandlord, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, shall save it harmless from and hold them harmless from, against any and all lossesclaims, claimsactions, damages, liabilitiesliability and expense, costs and expenses (including, without limitation, including reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyfees, “Losses”) incurred in connection with loss of life, personal injury or damage to property arising from any occurrence in or about the Demised Premises, or from the occupancy or uses by each Tenant of them in so far as such Losses (the Demised Premises, or actions with respect thereto) arise out of or are based upon (i) caused by any actual material misstatement act or omission in of Tenant, its agents, servants, employees, assignees, customers or invitees, including, but not limited to, the Fundfiling of any mechanics’ or materialmen’s Registration Statementliens against the Demised Premises, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund unless caused by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser Landlord and covered by casualty or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyinsurance.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Lease Agreement
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) No Venturer nor any of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserits members, or its their respective officers, shareholders, directors, partners, agentsDesignated Persons, employees and controlling persons, the Sub-Adviser or agents shall not be liable to the Venture or any Venturer for any loss or liability incurred in connection with any act or omission in the course ofconduct of the business of the Venture in accordance with the terms hereof, or connected with, rendering services hereunder or except for any losses that may be sustained loss or liability which the Venture or Venturer incurs in the purchaseconnection with such person's or entity's fraud, holding willful and wanton misconduct or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amendedgross negligence. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited Venture, to the assets of the Fund fullest extent permitted by law, hereby agrees to defend and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund indemnifies and the Adviser holds harmless each Venturer and each of its members and their respective trusteesofficers, membersdirectors, officersshareholders, Designated Persons, employees and shareholders, agents from and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, against any and all lossesliability, claimsloss, damagescost, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) expense or damage incurred or sustained by each reason of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement act or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure conduct of the Sub-Adviser to executebusiness of the Venture in accordance with the terms hereof including, or cause to be executedbut not limited to, portfolio investment transactions according to the requirements of applicable lawreasonable attorneys' and paralegals' fees through any and all negotiations, the Strategyand trial, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreementappellate, bankruptcy and collection levels; provided, however, that nothing in this Agreement the Venture shall protect not indemnify such person or entity or hold it harmless with respect to any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectivelyforegoing incurred in connection with such person's or entity's fraud, willful and wanton misconduct or gross negligence. Notwithstanding the foregoing, the “Sub-Adviser Indemnitees”)Venture shall advance, against, and hold them harmless from, on behalf of any and all Losses incurred by each of them in so far as such Losses (or actions Venturer against whom a claim is filed with respect thereto) arise out of or are based upon (i) to any material misstatement alleged act or omission in the Fund’s Registration Statementconduct of the business of the Venture, all costs and expenses of litigation, including reasonable attorneys' and paralegals' fees through any proxy statementand all negotiations, or any other communication at trial, appellate, bankruptcy and collection levels, and will be entitled to current or prospective investors in seek reimbursement from the Fund (other than a misstatement or omission relating to disclosure provided Venturer for such sums advanced only to the Adviser extent such Venturer is ultimately determined, by a final non-appealable order or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from makingjudgment, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faithhave been guilty of fraud, willful or wanton misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have and only to the Indemnified Party; provided that such party extent the Venture is not materially prejudiced reimbursed by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent insurance policies with respect to which indemnity may be sought hereunder.
f. such costs and expenses. The rights provisions of indemnification provided in this section Section 4.4 shall not be exclusive survive termination of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Liability and Indemnification. a. Except The Adviser agrees that, as expressly set forth an inducement to your undertaking to render the services to be provided hereunder in Section 2(o) of this Agreementaccordance with the Investment Advisers Act, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser you shall not be liable hereunder for any act error of judgment or omission in the course of, or connected with, rendering services hereunder mistake of law or for any losses loss suffered by the Company, the Fund, the Fund's security holders, or the Adviser, provided that may nothing herein shall be sustained deemed to protect or purport to protect you against any liability to the Adviser, the Company, the Fund or the Fund's security holders to which you would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the purchaseperformance of your duties hereunder, holding or sale by reason of your reckless disregard of your obligations and duties under this Agreement. In no event will you have any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from responsibility for any other series of the Trust Company, for any portion of the Fund's assets not managed by you or for the acts or omissions of the Adviser or any Trustees other sub-adviser to the Company or officerthe Fund. In particular, employee or agent in the event that you manage only a segment of the Fund's assets, you shall have no responsibility for the Fund being in violation of any applicable law or regulation or investment policy or restriction applicable to the Fund as a whole, or for the Fund failing to qualify as a regulated investment company under the Internal Revenue Code, if the securities and other holdings of the segment of the Fund's assets managed by you are such that your segment would not be in such violation or fail to so qualify if such segment were deemed a separate series of the Trust.
c. The Company or a separate regulated investment company under the Internal Revenue Code, unless such violation was due to your failure to comply with written guidelines adopted by the Company or the Adviser and provided to you. Except as may otherwise be provided by the Investment Company Act or any other federal securities law or the Commodity Exchange Act (the "CEA"), neither you nor any of your directors, officers, members or employees ("Sub-Adviser Affiliates") shall be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) ("Losses") incurred or suffered by the Adviser, the Company or the Fund as a result of any act or omission by you or the Sub-Adviser Affiliates with respect to the Fund, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of you or the Sub-Adviser Affiliates for, and you shall indemnify and hold harmless the Fund Adviser, the Company and the Adviser and each of their respective trustees, members, officers, employees and shareholdersFund, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “"Securities Act”")) (collectively, the “"Adviser Indemnitees”), ") against, and hold them harmless from, any and all lossesLosses to which any of the Adviser Indemnitees may become subject under the Investment Company Act, claimsthe Advisers Act, damagesthe CEA or the Securities Act, liabilitiesor under any other statute, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon on (i) any actual willful misfeasance, bad faith, reckless disregard or gross negligence on your part in the performance of any of your duties or obligations hereunder or (ii) any untrue statement of a material misstatement fact contained in the Prospectus and/or Statement of Additional Information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund or the omission to state therein a material fact known to you that was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided reliance upon information furnished to the Adviser or the Fund Indemnitees by the Sub-Adviser Indemnitees (as defined below) for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence use therein. Except as may otherwise be provided by the Sub-Investment Company Act or any other federal securities law or the CEA, neither the Adviser in the performance nor any of its duties under this Agreement directors, officers, members or the reckless disregard of its obligations employees ("Adviser Affiliates") shall be liable for any Losses incurred or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) suffered by you as a result of any failure by act or omission of the Sub-Adviser or the Adviser Affiliates with respect to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedFund, however, except that nothing in this Agreement shall protect operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser Indemnitee against or the Adviser Affiliates for, and the Adviser shall indemnify and hold harmless you, all affiliated persons of you (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act) (collectively, "Sub-Adviser Indemnitees") against, any liability and all Losses to which such any of the Sub-Adviser Indemnitee would Indemnitees may become subject under the Investment Company Act, the Advisers Act, the CEA or the Securities Act, or under any other statute, at common law or otherwise be subject by reason arising out of his, her or its based on (i) any willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of any of its duties under this Agreement or obligations hereunder, (ii) any untrue statement of a material fact contained in the Prospectus and/or Statement of Additional Information, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Fund or the reckless disregard of its obligations omission to state therein a material fact known to the Adviser that was required to be stated therein or duties hereunder; (iv) any failure necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon information furnished to the Adviser Indemnitees by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject Indemnitees for use therein, or (iii) any Losses accruing to the extent, if any, caused by reason or based upon the conduct of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. any other sub-adviser to the Fund. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each each, a “"Proceeding”") by a party seeking to be indemnified under Section 9(c) or 9(d) hereunder (the “"Indemnified Party”"), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) hereunder (the “"Indemnifying Party”) "), notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party in the absence of a showing of actual prejudice shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party. The Indemnifying Party shall be entitled to participate in, and, to the extent that it may wish, assume the defense thereof (in its own name or in the name and on behalf of any Indemnified Party, or both, with counsel reasonably satisfactory to such Indemnified Party) by giving written notice to the Indemnified Party within 10 days of receiving notice of the Proceeding (or such shorter period as is required to respond to the Proceeding); provided provided, however, if the defendants in any such action include (or will include) both the Indemnified Party and an Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be a conflict between the positions of the Indemnified Party and an Indemnifying Party in conducting the defense of any such party is action or that there may be legal defenses available to it which are inconsistent with those available to an Indemnifying Party, the Indemnified Party shall have the right to select one separate counsel (in addition to local counsel) to assume such legal defense and to otherwise participate in the defense of such action on behalf of such Indemnified Party at such Indemnified Party's sole expense. Upon receipt of notice from an Indemnifying Party to such Indemnified Party of its election so to assume the defense of such action and approval by the Indemnified Party of counsel, which approval shall not materially prejudiced be unreasonably withheld (and any disapproval shall be accompanied by a written statement of the reasons therefor), the Indemnifying Party will not be liable to such Indemnified Party hereunder for any legal or other expenses subsequently incurred by such failure to notifyIndemnified Party in connection with the defense thereof. No Indemnifying Party shall be liable under this section Agreement for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder, nor shall any Indemnifying Party enter into any settlement (other than a purely monetary "no admission" settlement) without the consent of the Indemnified Party.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Sub Investment Advisory Agreement (Dreyfus BNY Mellon Funds, Inc.)
Liability and Indemnification. a. Except as expressly set forth for any claims, rights of recovery and causes of action that Tenant has released, Landlord shall hold Tenant harmless and defend Tenant against any and all claims or liability for any injury or damage to any person in, on or about the Premises, when such injury or damage shall be caused by an affirmative act of negligence by such landlord, its agents, servants and employees (unless the indemnified loss is causes wholly or in Section 2(o) part by Tenant's or any other party's negligence, in which event this indemnity shall not apply to the allocable share of this Agreementsuch loss resulting from Tenant's or such other party's negligence). Except for any claims, absent the Sub- Adviser’s material breach rights of this Agreement or the willful misconductrecovery and causes of action that Landlord has released, bad faithTenant shall indemnify, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviserprotect, or hold harmless and defend Landlord, its officersagents, employees, contractors, partners, directors, partners, agents, employees officers and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any affiliates of the Fund’s obligations shall be limited to above-mentioned parties (collectively the assets of the Fund "LANDLORD AFFILIATES") from and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, against any and all obligations, suits, losses, claimsjudgments, actions, damages, liabilities, costs and expenses claims or liability (including, without limitation, reasonable all costs, attorneys’ ' fees, and accountants’ fees and disbursementsexpenses incurred in connection therewith) (collectivelyin connection with any loss, “Losses”) incurred by each of them in so far as such Losses (injury or actions with respect thereto) arise out of or are based upon damage (i) to any actual material misstatement person or property whatsoever occurring in, on or about the Project, when such injury or damage shall be caused by the act, neglect, fault of, or omission in of any duty with respect to the Fund’s Registration Statementsame by Tenant, any proxy statementits agents, servants, employees, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; invitees (ii) arising from the bad faithconduct of management of any work done by or for Tenant in or about the Project, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure arising from transactions of the Sub-Adviser to executeTenant, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as arising from a result breach, violation or non-performance of any failure term, provision, covenant or agreement of Tenant hereunder, or a breach or violation by the Sub-Adviser to exercise the standard Tenant of care set forth in this Agreement; any court order or (v) any material breach law, regulation, or ordinance of this Agreement; providedany federal, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her state or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act local authority (collectively, the “Sub-Adviser Indemnitees”"LOSSES"). If any claim is made against Landlord or Landlord Affiliates, againstTenant, at its sole cost and hold them harmless fromexpense, shall defend any and all Losses incurred such claim, suit or proceeding by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication through attorneys satisfactory to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach Landlord. The provisions of this Agreement by PARAGRAPH 16 shall survive the Adviser expiration or the Fund; provided, however, that nothing in termination of this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Lease with respect to which indemnity may be sought hereunderany claims or liability occurring prior to such expiration or termination.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Industrial Sublease Agreement (Advanced Materials Group Inc)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the Absent willful misconductmisfeasance, bad faith, gross negligence negligence, or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviseradviser, or its officers, directors, partners, agents, employees and controlling persons, neither the Sub-Adviser shall not adviser nor any of the Sub-adviser Indemnified Parties (as defined below) will be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any positionsecurity or the entering into of any transaction or for any Losses (as defined below) arising out of any Proceedings (as defined below).
b. The Sub-Adviser adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of TrustLimited Liability Company Agreement, as amended. The Sub-Adviser adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser adviser shall not seek satisfaction of any such obligation from the shareholders unit holders of the Fund nor from any other series member, officer or employee of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the TrustFund.
c. The Sub-Adviser adviser shall indemnify the Fund and Fund, the Adviser Adviser, and each of their respective trusteesaffiliates, membersagents, directors, members of the Board, officers, employees and shareholdersshareholders (the “Adviser Indemnified Parties”) against, and each personhold them harmless from, if anyany costs, who controls expense, claim, loss, liability, judgment, fine, settlement or damage (including reasonable legal and other expenses) (collectively, “Losses”) arising out of any claim, demands, actions, suits or proceedings (civil, criminal, administrative or investigative) asserted or threatened to be asserted by any third party (collectively, “Proceedings”) in so far as such Loss (or actions with respect thereto) (i) arises directly out of or is based directly upon any untrue statement of a material fact or omission of a material fact necessary in order to make the Fund or statements made, in light of the circumstances under which they were made, not misleading, in information furnished in writing to the Adviser by the Sub-adviser for use in the Fund’s Confidential Private Placement Memorandum, Registration Statement, Fund Marketing Materials or regulatory filings; (ii) arises directly out of or is based directly upon any material breach of any of the representations, warranties, covenants or obligations of the Sub-adviser with respect to this Agreement (unless such breach is caused by one of the Adviser Indemnified Parties); or (iii) arises directly out of or is based directly upon the willful misfeasance, bad faith, gross negligence or reckless disregard of duties of the Sub-adviser in the performance of its duties under this Agreement (subsections (i), (ii) and (iii) collectively referred to herein as the “Sub-adviser’s Disqualifying Conduct”).
d. The Fund and the Adviser shall, jointly and severally, indemnify the Sub-adviser and the Sub-adviser’s officers, directors, partners, agents, employees, controlling persons, shareholders and any other person or entity affiliated with the Sub-adviser (collectively, the “Sub-adviser Indemnified Parties” and, together with the Adviser Indemnified Parties, the “Indemnified Parties”) against, and hold such Sub-adviser Indemnified Parties harmless from, any and all Losses from any Proceedings arising in connection with the Sub-adviser serving as the sub-adviser of the Fund; provided, however, that no such indemnification will be provided to the Sub-adviser Indemnified Parties for any Losses arising as a result of Sub-adviser Disqualifying Conduct. The Adviser shall indemnify each affiliated person (as defined by the 0000 Xxx) of the Sub-adviser (and each affiliated person of such a person) who may be deemed to be a controlling person (as defined by the 1940 Act and/or within the meaning of Section 15 of the Securities Act of 1933, as amended (the "1933 Act")) of the Fund (each such person, a “Securities ActControlling Person”) (collectively, the “Adviser Indemnitees”), against, and hold them each Controlling Person harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far Losses insofar as such Losses arise in connection with any Proceeding based on any such person’s status as a Controlling Person and relate to any violation (or actions with respect theretoan alleged violation) arise out of or are based upon the federal securities laws; provided that (i) such Controlling Person has not otherwise received payment for such Losses under any actual material misstatement insurance policy, contract, agreement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documentsotherwise; (ii) such Losses are not the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a direct result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its Controlling Person’s willful misfeasance, bad faith, gross negligence negligence, or reckless disregard untrue statement of duty.
d. The Adviser and a material fact or omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, in information furnished in writing to the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-adviser for use in the Registration Statement, the Confidential Private Placement Memorandum or Fund Marketing Materials; and (iii) such Losses are not the result of the Sub-adviser’s Disqualifying Conduct. To the extent that a Controlling Person is entitled to indemnification pursuant to the second sentence of this sub-section d. in connection with any Proceeding, such indemnification shall take precedence over indemnification by the Fund or the Adviser for inclusion of any person (including the indemnification of any Controlling Person) pursuant to the first sentence of this sub-section d. in such documents); (ii) connection with the same Proceeding.
e. In the event that any party hereto is or becomes a party to any action or inaction proceeding in respect of which it may be entitled to seek indemnification hereunder (“indemnitee”), the indemnitee shall promptly notify any other party from whom the indemnitee may seek indemnification hereunder (“indemnitor”); provided that failure by the Sub-Adviser indemnitee to give such notice shall not relieve indemnitor from any of its obligations hereunder, except to the extent that failure by the Sub-Adviser has made indemnitee to give such notice prejudices the indemnitor. The indemnitor shall be entitled to participate in any such suit or refrained proceeding and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to the indemnitee. Notwithstanding the preceding sentence, the indemnitee shall be entitled to employ counsel separate from making, as applicable, the indemnitor’s counsel and from any other party in such action if the indemnitee determines in good faith pursuant to that a conflict of interest exists which makes counsel chosen by the indemnitor not advisable or if the indemnitee reasonably determines that the indemnitor’s assumption of the defense does not adequately represent the indemnitee’s interest. In such event the indemnitor will pay the fees and consistent disbursements of such separate counsel, but in no event shall the indemnitor be liable for the fees and expenses of more than one counsel for the indemnitee in connection with any one action or separate but similar or related actions in the Advisersame jurisdiction arising out of the same general allegations or circumstances.
f. The termination of a Proceeding by settlement or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an indemnitee’s written instructions acts, omissions or alleged acts or omissions were primarily attributable to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard willful misconduct of dutysuch indemnitee.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party g. The indemnitor shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section hereunder for any settlement of any Proceeding entered into action or claim effected without its written consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section thereto and such consent shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreementunreasonably withheld.
Appears in 1 contract
Samples: Sub Advisory Agreement (ASGI Corbin Multi-Strategy Fund, LLC)
Liability and Indemnification. a. Except as The duties of the Sub-Adviser shall be confined to those expressly set forth in Section 2(o1(b) of this Agreement, absent the Sub- Adviser’s material breach of this Agreement or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of hereof and the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Adviser expressly disclaims liability for any other duties. The Sub-Adviser shall not be liable for any act loss, damage, liability, cost or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended expense (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, including reasonable attorneys’ and accountants’ fees and disbursementsamounts paid in settlement) (collectively, “Losses”) incurred by each of them arising in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent connection with the AdviserBDC’s written instructions to activities, except a Loss resulting from the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its ’s willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such personits duties, or by reason of reckless disregard of its obligations and duties hereunder, except as may otherwise be provided under provisions of applicable state law which cannot be waived or modified hereby, in each case, as the same is finally determined by judicial proceedings. (As used in this Section 8(a), the term “Sub-Adviser” shall include, without limitation, its affiliates and the Sub-Adviser’s and its affiliates’ respective partners, shareholders, directors, members, principals, officers, managers, employees agents and controlling persons, including, without limitation, the Sub-Adviser’s managing member, each of which shall be deemed a third party beneficiary for purposes hereof).
b. The Sub-Adviser shall indemnify the Adviser and BDC against any Loss arising from, or in connection with, the Sub-Adviser’s breach of the terms, representations and warranties herein or otherwise based upon the performance of the Sub-Adviser’s duties or obligations under this Agreement, including by reason of any pending, threatened or completed claim, action, suit, investigation or other proceeding or regulatory or self-regulatory inquiry (including an action or suit by or in the right of the BDC (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Sub-Adviser, including, without limitation, its manager); provided, however, that the Adviser shall not be indemnified for any Loss that is sustained as a result of the Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of the Adviser’s duties or by reason of its the reckless disregard of such personthe Adviser’s duties and obligations and duties under this Agreement, in each case, as the same is finally determined by judicial proceedings.
c. The BDC shall indemnify the Sub-Adviser for any Loss whatsoever, arising from, or in connection with, the Sub-Adviser’s performance of its obligations under this Agreement, and the Adviser shall indemnify the Sub-Adviser (as defined in Section 8(a)) against any Loss arising from, or in connection with, the Adviser’s breach of the terms, representations and warranties herein or otherwise based upon the performance of the Adviser’s duties or obligations under this Agreement or as investment adviser of the BDC, including by reason of any pending, threatened or completed claim, action, suit, investigation or other proceeding or regulatory or self-regulatory inquiry (including an action or suit by or in the right of the BDC or the Adviser (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Adviser, including, without limitation, its manager); provided, however, that the Sub-Adviser shall not be indemnified for any Loss that is sustained as a result of the Sub-Adviser’s willful misfeasance, bad faith, or gross negligence in the performance of the Sub-Adviser’s duties or by reason of the reckless disregard of the Sub-Adviser’s duties and obligations under this Agreement, in each case, as the same is finally determined by judicial proceedings.
d. With respect to any claim of indemnification hereunder, the BDC or the Adviser, as the case may be, shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if it receives a written undertaking to make reimbursement if it is finally judicially determined that such person is not entitled to indemnification, and if, in the case of advances by the BDC, a majority of the Independent Directors or an opinion of independent counsel determines, based on a review of readily available factors (as opposed to a trial determination) that there is reason to believe that the Sub-Adviser will ultimately be found to be entitled to indemnification.
e. Nothing in this Section 8 shall be construed so as to provide for the indemnification of any party or any limitation on the liability of any party that would, in either case, be in violation of applicable law, but such provisions shall otherwise be construed so as to effectuate the provisions of this Section 8 to the fullest extent permitted by applicable law.
Appears in 1 contract
Samples: Investment Sub Advisory Agreement (Hancock Park Corporate Income, Inc.)
Liability and Indemnification. a. Except as expressly set forth in Section 2(o(a) Notwithstanding any other provisions of this Agreement, absent the Sub- Adviser’s material breach of this Agreement whether express or the willful misconductimplied, bad faithor any obligation or duty at law or in equity, gross negligence or reckless disregard none of the obligations or duties hereunder on the part of the Sub-AdviserMembers, Manager, or its any officers, directors, stockholders, partners, agentsemployees, employees and controlling personsaffiliates, the Sub-Adviser shall not be liable for any act representatives or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale agents of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of foregoing, nor any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee employee, representative or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trusteesCompany (individually, membersa "Covered Person" and, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”)"Covered Persons") shall be liable, againstresponsible or accountable, in damages or otherwise, to the Company or any other person for any act performed by or omitted by a Covered Person within the scope of the authority conferred on the Covered Person by this Agreement, except with respect to any matter as to which Covered Person shall have been adjudicated in any proceeding to have engaged in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. No Covered Person shall be liable, responsible or accountable, in damages or otherwise, to the Company or any other person for any loss suffered by the Company that arises out of any action or inaction of any Covered Person, if such Covered Person in its reasonable good faith determines that such course of conduct was in the best interest of the Company, and such course of conduct did not constitute gross negligence or willful misconduct of such Managers.
(b) To the fullest extent permitted by law, the Company shall indemnify and hold them harmless from, each Covered Person from and against any and all losses, claims, damagesdemands, liabilities, costs expenses, judgments, fines, settlements and expenses other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative (including"Claims"), without limitationin which the Covered Person may be involved, reasonable attorneys’ and accountants’ fees and disbursementsor threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 12(b) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon to (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent Claim with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided such Covered Person has engaged in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by lawfraud, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or part thereof) (A) was brought to enforce such Covered Person's rights to indemnification hereunder or (B) was authorized or consented to by the Managing Member. Expenses incurred by a Covered Person in defending any Claim shall be paid by the performance Company in advance of the final disposition of such person’s duties Claim upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company as authorized by this Section 12(b).
(c) In discharging its duties, each Covered Person shall be fully protected in relying in good faith upon the records required to be maintained under the Act and upon such information, opinions, reports or statements by any of the Company's agents, or by reason any other person, as to matters the Covered Person reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of its reckless disregard the Covered Person, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, or losses of the Company or any other facts pertinent to the existence and amount of assets from which distributions to the Members might properly be paid.
(d) Any repeal or modification of this Section 12 by the Members shall not adversely affect any rights of such person’s obligations Covered Person pursuant to this Section 12, including the right to indemnification and duties under this Agreementto the advancement of expenses of a Covered Person existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Appears in 1 contract
Samples: Secured Subordinated Promissory Note (Monterey Capital Acquisition Corp)
Liability and Indemnification. a. Except as expressly set forth Without in Section 2(o) of any way limiting Subadviser’s obligations under this Agreement, absent including but not limited to the Sub- representations in Sections 2(a)(ii) and 2(m), the Adviser and Subadviser acknowledge that the Subadviser is not the tax advisor, compliance, pricing or fund accounting agent for the Portfolio, the Trust, or for the Adviser’s material . Accordingly, each Party agrees that Subadviser shall perform such services based upon the portfolio records of the Portfolio that it maintains in its ordinary course of business and written instructions received from the Trust or the Adviser.
b. Subadviser shall not be in breach of this Agreement or if it treats income derived by the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, Portfolio or its officerswholly-owned subsidiary as qualifying income under Code Section 851(b)(2) (“Qualifying Income”) for any period prior to the earlier of (i) its receipt of a written instruction from the Adviser that such income is not to be considered Qualifying Income or (ii) the issuance of a notice, directors, partners, agents, employees and controlling personsruling or other pronouncement by the Internal Revenue Service that such income is not Qualifying Income.
c. Except as may otherwise be provided by the 1940 Act or any other applicable law, the Sub-Adviser Subadviser shall not be liable for any act losses, claims, damages, liabilities or omission in litigation (including legal and other expenses) incurred or suffered by the course of, Adviser or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale Trust as a result of any position.
b. The Sub-Adviser acknowledges error of judgment or mistake of law by the Subadviser with respect to the Portfolio, except that it has received notice nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Subadviser for, and accepts the limitations upon the Fund’s liability set forth in Subadviser shall indemnify and hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe 1940 Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) incurred by each of them in so far as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon on (i) any actual material misstatement willful misconduct, bad faith, reckless disregard or omission gross negligence of the Subadviser in the Fund’s performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Registration Statement, any proxy statementmaterials, reports, advertisements, sales literature, or communication other materials pertaining to current the Portfolio or prospective investors the omission to state therein a material fact known to the Subadviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in the Fund relating to disclosure provided reliance upon information furnished to the Adviser or the Fund Trust by the Sub-Adviser Subadviser Indemnitees (as defined below) for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence use therein.
d. Except as may otherwise be provided by the Sub-Adviser in the performance of its duties under this Agreement 1940 Act or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of any other applicable law, the StrategyAdviser and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Governing Documents or the Procedures; (iv) Subadviser as a result of any failure error of judgment or mistake of law by the Sub-Adviser with respect to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedPortfolio, however, except that nothing in this Agreement shall protect operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of hisfor, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund Adviser shall indemnify and hold harmless the Sub-Adviser and each of its membersSubadviser, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act 1933 Act) (collectively, the “Sub-Adviser Subadviser Indemnitees”), against, and hold them harmless from, ) against any and all Losses incurred by each losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses (the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct reckless disregard or gross negligence of the Adviser or the Fund in the performance of any of its duties under this Agreement or obligations hereunder or (ii) any untrue statement of a material fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Portfolio or the reckless disregard of its obligations or duties hereunder; (iv) any failure by omission to state therein a material fact known to the Adviser which was required to exercise be stated therein or necessary to make the standard of care set forth statements therein not misleading, unless such statement or omission was made in this Agreement; or (v) any material breach of this Agreement by reliance upon information furnished to the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser by an Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of dutyfor use therein.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Subadvisory Agreement (Met Investors Series Trust)
Liability and Indemnification. a. Except as expressly set forth (a) North Track shall indemnify and hold Administrator and its controlling persons, if any, harmless from any and all claims, actions, suits, losses, costs, damages, and expenses, including reasonable expenses for counsel, incurred by it in Section 2(o) connection with its acceptance of this Agreement, absent the Sub- Adviser’s material breach of this Agreement in connection with any action or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, omission by it or its officers, directors, partnersemployees, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser subcontractors in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser hereunder to executeNorth Track, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of acting upon any failure instruction believed by the Sub-Adviser it to exercise the standard have been executed by a duly authorized agent of care set forth North EXHIBIT (H)(16) --------------- Track or as a result of acting upon information provided by North Track in this Agreement; or (v) any material breach of this Agreementform and under policies agreed to by Administrator and North Track; provided, however, that nothing in (i) to the extent such claims, actions, suits, losses, costs, damages, or expenses relate solely to one or more Funds, such indemnification shall be only out of the assets of that Fund or group of Funds; (ii) this Agreement indemnification shall protect any Adviser Indemnitee against any liability not apply to which such Adviser Indemnitee would otherwise be subject by reason actions or omissions constituting negligence or misconduct on the part of his, her Administrator or its employees, agents, or subcontractors, including, but not limited to, willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties their duties, or by reason of its reckless disregard of such person’s their obligations and duties under this Agreement; and (iii) Administrator shall give North Track prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of Administrator. In any event, North Track shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
(b) Administrator shall indemnify and hold harmless North Track from and against any and all claims, demands, expenses, and liabilities which North Track may sustain or incur arising out of, or incurred because of, the negligence or misconduct of Administrator, or its agents or contractors, or the breach by Administrator of its obligations under this Agreement, provided, however, that (i) this indemnification shall not apply to actions or omissions constituting negligence or misconduct on the part of North Track, or its other agents or contractors, and (ii) North Track shall give Administrator prompt notice and reasonable opportunity to defend against any such claim or action in its own name or in the name of North Track In any event, Administrator shall not be responsible for any claim settled or compromised, or for any confession of judgment, without its prior written consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) of this Agreement, absent may otherwise be provided by the Sub- Adviser’s material breach of this Agreement 1940 Act or the willful misconduct, bad faith, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling personsany other federal securities law, the Sub-Adviser Subadviser shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser or the Trust as a result of any error of judgment or mistake of law by the Subadviser with respect to any Portfolio, or any act or omission by Subadviser in good faith and believed by it to be authorized or within its discretion, rights or powers conferred by this Agreement or in accordance with specific directions or instructions from the course ofAdviser or the officers or trustees of the Adviser, Fund or connected withTrust, rendering services hereunder except that nothing in this Agreement shall operate or for purport to operate in any losses that may be sustained in way to exculpate, waive or limit the purchaseliability of the Subadviser for, holding or sale of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth in Subadviser shall indemnify and hold harmless the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officerAdviser, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (the “Securities 1933 Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, ) against any and all losses, claims, damages, liabilitiesliabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, costs and expenses (includingthe 1940 Act, without limitationthe Advisers Act, reasonable attorneys’ and accountants’ fees and disbursements) (collectivelyor under any other statute, “Losses”) incurred by each of them in so far as such Losses (at common law or actions with respect thereto) arise otherwise arising out of or are based upon (i) on any actual material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct reckless disregard or gross negligence by of the Sub-Adviser Subadviser in the performance of any of its duties under this Agreement or obligations hereunder.
b. Except as may otherwise be provided by the reckless disregard of its obligations 1940 Act or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable any other federal securities law, the StrategyAdviser and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Governing Documents or the Procedures; (iv) Subadviser as a result of any failure error of judgment or mistake of law by the Sub-Adviser with respect to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; providedPortfolio, however, except that nothing in this Agreement shall protect operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of hisfor, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund Adviser shall indemnify and hold harmless the Sub-Adviser and each of its membersSubadviser, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser all affiliated persons thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) and all controlling persons (as described in Section 15 of the Securities Act 1933 Act) (collectively, the “Sub-Adviser Subadviser Indemnitees”), against, and hold them harmless from, ) against any and all Losses incurred by each losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of them in so far as such Losses (the Subadviser Indemnitees may become subject under the 1933 Act, the 1940 Act, the Advisers Act, or actions with respect thereto) arise under any other statute, at common law or otherwise arising out of or are based upon on (i) any material misstatement or omission in the Fund’s Registration Statementwillful misconduct, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct reckless disregard or gross negligence of the Adviser or the Fund in the performance of any of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; , (ivii) any failure by the Adviser to exercise properly notify the standard Subadviser of care set forth changes to the Registration Statement or any Charter Requirements or Policies and Procedures, (iii) any action or omissions taken by Subadviser in this Agreement; accordance with an instruction or direction provided by Adviser, the Trust or the Board of Trustees of the Trust or in accordance with the terms of the Registration Statement, Charter Documents or Policies and Procedures, or (viv) any untrue statement of a material breach of this Agreement by fact contained in the Registration Statement, proxy materials, reports, advertisements, sales literature, or other materials pertaining to a Portfolio or the omission to state therein a material fact known to the Adviser which was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon information furnished to the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) Trust by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section Subadviser Indemnitee for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderuse therein.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Investment Subadvisory Agreement (Aspiriant Global Equity Trust)
Liability and Indemnification. a. Except 11.1. Each Party’s maximum liability for direct damages under this Agreement to the other Party shall always be limited to the amount in fees hereunder actually paid or payable by the Affiliate to the Company. Each Party releases the other Party from all obligations, liability, claims or demands in excess of the aforementioned limitation.
11.2. The Company shall not be liable in contract, tort, for breach of statutory duty or in any other way for any indirect damages or losses that may occur as a consequence of this Agreement whatsoever, such as any economic loss, loss of profit, loss of savings, loss of goodwill or reputation, or other consequential damage.
11.3. The above stated limitations of liability shall not apply in case of acts of gross negligence or willful misconduct by the liable Party or anyone acting on its behalf, or if expressly set forth stated elsewhere in Section 2(othis Agreement.
11.4. The Affiliate agrees to defend, indemnify and hold the Company and its group of companies/affiliates, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable legal and expert fees, related to or arising from:
a) any breach of Affiliate's representations, warranties or obligations under this Agreement;
b) Affiliate's use (or misuse) of this Agreementthe marketing material and the Company's and/or its group companies' Intellectual Property Rights;
c) all conduct and activities occurring under Affiliate's user ID and password;
d) any defamatory, absent libellous or illegal material contained on the Sub- Adviser’s material breach Affiliate Website(s) or Affiliate's information and data;
e) any claim or contention that the Affiliate Website(s) or the Affiliate's information and data infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity;
f) third party access or use of the Affiliate Website(s) or the Affiliate's information and data;
g) any claim related to Affiliate Website(s) or the Links; and
h) any violation of this Agreement or any applicable laws.
11.5. The Company and its group of companies reserves the willful misconductrights to participate, bad faithat its own expense, gross negligence or reckless disregard of the obligations or duties hereunder on the part of the Sub-Adviser, or its officers, directors, partners, agents, employees and controlling persons, the Sub-Adviser shall not be liable for any act or omission in the course of, or connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale defense of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the Fund’s liability set forth matter or claim in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited relation to the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trustabove.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunder.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Affiliate Agreement
Liability and Indemnification. a. Except as expressly set forth in Section 2(o) 13.1 The Lessee shall be responsible for damages to property or injuries to persons to the extent they arise from or are attributable to the condition or state of this Agreementrepair of the Leased Premises, absent the Sub- Adviser’s material breach of this Agreement or the willful misconductuse and occupation thereof, bad faithor for damages to the Lessee’s property, gross negligence or reckless disregard for damages to the property of or injuries to the obligations Lessee’s officers, agents, servants, employees, or duties hereunder others who may be on the part Leased Premises at their invitation, unless due to the act or omission of the Sub-Adviser, Lessor or its officers, directorsagents, partnersservants, employees, contractors, licensees or invitees or another third party not within the control or employ of Xxxxxx.
13.2 The Lessee further agrees to indemnify, save, hold harmless, and defend the Lessor, its officers, agents, employees and controlling personsemployees, from and against all suits, claims, demands, or actions, liabilities, judgments, costs, and attorneys’ fees arising out of, or in any manner predicated upon, personal injury, death, or property damage (“Claims”), to the extent such Claims result from, relate to, are caused by, or arise out of, the Sub-Adviser shall not be liable for possession and/or use of the Leased Premises or any activities conducted or services furnished in connection with or pursuant to this Lease, unless due to the act or omission in of Lessor or its officers, agents, servants, employees, contractors, licensees or invitees or another third party not within the course control or employ of Lessee. Except as provided herein, Lessor’s liability shall be as provided by law. The Lessor will give the Lessee notice of any Claim against it covered by this indemnity as soon after learning of it as practicable.
13.3 Xxxxxx agrees to indemnify, save, hold harmless, and defend Xxxxxx, its officers, agents, and employees, from and against all suits, claims, demands, or actions, liabilities, judgments, costs, and attorneys’ fees arising out of, or connected within any manner predicated upon, rendering services hereunder personal injury, death, or for any losses that may be sustained property damage (Lessee Claims ) to the extent such Lessee Claims result from, are related to, caused by, or arise out of, the actions or inactions of Lessor or anyone acting on its behalf or under its control in connection with or pursuant to this Lease, unless due to the purchaseact or omission of Lessee or its officers, holding agents, servants, employees, contractors, licensees or sale invitees or another third party not within the control or employ of any position.
b. The Sub-Adviser acknowledges that it has received notice of and accepts the limitations upon the FundXxxxxx. Except as provided herein, Lessor’s liability set forth in the Trust’s Agreement and Declaration of Trust, as amended. The Sub-Adviser agrees that any of the Fund’s obligations shall be limited to as provided by law. [Need full citation of law referred to.] Lessee will give the assets of the Fund and that the Sub-Adviser shall not seek satisfaction of any such obligation from the shareholders of the Fund nor from any other series of the Trust or any Trustees or officer, employee or agent of the Fund or other series of the Trust.
c. The Sub-Adviser shall indemnify the Fund and the Adviser and each of their respective trustees, members, officers, employees and shareholders, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”) (collectively, the “Adviser Indemnitees”), against, and hold them harmless from, any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) (collectively, “Losses”) incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any actual material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or communication to current or prospective investors in the Fund relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents; (ii) the bad faith, willful misconduct or gross negligence by the Sub-Adviser in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iii) the failure of the Sub-Adviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, the Strategy, the Governing Documents or the Procedures; (iv) as a result of any failure by the Sub-Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement; provided, however, that nothing in this Agreement shall protect any Adviser Indemnitee against any liability to which such Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
d. The Adviser and the Fund shall indemnify the Sub-Adviser and each of its members, partners, officers, employees and shareholders, and each person, if any, who controls the Sub-Adviser within the meaning of Section 15 of the Securities Act (collectively, the “Sub-Adviser Indemnitees”), against, and hold them harmless from, any and all Losses incurred by each of them in so far as such Losses (or actions with respect thereto) arise out of or are based upon (i) any material misstatement or omission in the Fund’s Registration Statement, any proxy statement, or any other communication to current or prospective investors in the Fund (other than a misstatement or omission relating to disclosure provided to the Adviser or the Fund by the Sub-Adviser for inclusion in such documents); (ii) any action or inaction by the Sub-Adviser that the Sub-Adviser has made or refrained from making, as applicable, in good faith pursuant to and consistent with the Adviser’s written instructions to the Sub-Adviser; (iii) the bad faith, willful misconduct or gross negligence of the Adviser or the Fund in the performance of its duties under this Agreement or the reckless disregard of its obligations or duties hereunder; (iv) any failure by the Adviser to exercise the standard of care set forth in this Agreement; or (v) any material breach of this Agreement by the Adviser or the Fund; provided, however, that nothing in this Agreement shall protect any Sub- Adviser Indemnitee against any liability to which such Sub-Adviser Indemnitee would otherwise be subject by reason of his, her or its willful misfeasance, bad faith, gross negligence or reckless disregard of duty.
e. Promptly after receipt of Government notice of any action, arbitration, claim, demand, dispute, investigation, lawsuit or other proceeding (each a “Proceeding”) Lessee Claim against Lessee covered by a party seeking to be indemnified under Section 9(c) or 9(d) (the “Indemnified Party”), the Indemnified Party will, if a claim in respect thereof is to be made against a party against whom indemnification is sought under Section 9(c) or 9(d) (the “Indemnifying Party”) notify the Indemnifying Party in writing this indemnity as soon after learning of the commencement of such Proceeding; provided that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any indemnification liability which it may have to the Indemnified Party; provided that such party is not materially prejudiced by such failure to notify. No Indemnifying Party shall be liable under this section for any settlement of any Proceeding entered into without its consent with respect to which indemnity may be sought hereunderas practicable.
f. The rights of indemnification provided in this section shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise by law, and shall not protect any person against any liability to which any such person would otherwise be subject by reason of willful misconduct, bad faith or gross negligence in the performance of such person’s duties or by reason of its reckless disregard of such person’s obligations and duties under this Agreement.
Appears in 1 contract
Samples: Lease Agreement
