Common use of OF COMPANY BY FAIP AND ADVISOR Clause in Contracts

OF COMPANY BY FAIP AND ADVISOR. (a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e), hereof, FAIP and the Advisor agree to indemnify and hold harmless Company, its affiliates, and each person, if any, who controls Company or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses), to which the Indemnified Parties may become subject under any statute, regulation, at common law, or otherwise; provided, insofar as such losses, claims, damages, liabilities or actions are related to the sale or acquisition of FAIP's shares or the Contracts and: (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in FAIP's 1933 Act registration statement, FAIP Prospectus or sales literature or advertising of FAIP (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished in writing to FAIP or its affiliates by or on behalf of Company or its affiliates specifically for use in FAIP's 1933 Act registration statement, FAIP Prospectus, or in sales literature or advertising or otherwise for use in connection with the sale of Contracts or Shares (or any amendment or supplement to any of the foregoing) or was consented to by Company pursuant to Section 4.6(d); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of FAIP or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of FAIP or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons" as that Term is defined in Section (ee) of Article 1 of the NASD By-Laws), in connection with the sale or distribution of FAIP Shares; or (iii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with information furnished in writing to Company or its affiliates by or on behalf of FAIP or its affiliates specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing or was consented to by FAIP pursuant to Section 4.5(c); or (iv) arise as a result of any failure by FAIP or the Advisor to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, or any material breach of any representation and/or warranty made by FAIP or the Advisor in this Agreement or arise out of or result from any other material breach of this Agreement by FAIP or the Advisor. (b) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e) hereof, FAIP and the Advisor agree to indemnify and hold harmless the Indemnified Parties from and against any and all losses, claims, damages, liabilities (including amounts paid in settlement thereof with, the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses) to which the Indemnified Parties may become subject directly or indirectly under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities or actions directly or indirectly result from or arise out of the failure of any Fund to operate as a regulated investment company in compliance with (i) Subchapter M of the Code and regulations thereunder, or (ii) Section 817(h) of the Code and regulations thereunder, including, without limitation, any income taxes and related penalties, rescission charges, liability under state law to Participants asserting liability against Company pursuant to the Contracts, the costs of any ruling and closing agreement or other settlement with the IRS, and the cost of any substitution by Company of Shares of another investment company or portfolio for those of any adversely affected Fund as a funding medium for each account that Company reasonably deems necessary or appropriate as a result of the noncompliance. (c) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any losses, claims, damages, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Party of its duties or by reason of such Indemnified Party's reckless disregard of its obligations and duties under this Agreement. (d) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified FAIP in writing within a reasonable time after the summons or other first legal process giving information of the nature of the action shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify FAIP of any such action shall not relieve FAIP from any liability which it may have to the Indemnified Party against whom such action is brought unless the ability of Company to defend such action is materially impaired thereby, except as otherwise provided herein, in case any such action is brought against an Indemnified Party and/or FAIP will be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement proceeding with the IRS), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from FAIP to such Indemnified Party of FAIP's election to assume the defense thereof, the Indemnified Party will cooperate fully with FAIP and shall bear the fees and expenses of any additional counsel retained by it, and FAIP will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other than reasonable costs of investigation. (e) In no event shall FAIP and the Advisor be liable under the indemnification provisions contained in this Agreement to any Indemnified Party, with respect to any losses, claims, damages, liabilities or expenses that arise out of or result from (i) a breach of any representation, warranty, and/or covenant made by Company; (ii) the failure by Company to maintain its segregated asset account (which invests in any Fund) as a legally and validly established segregated asset account under applicable state law and as a duly registered unit investment trust under the provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure by Company to maintain its variable annuity or life insurance contracts (with respect to which any Fund serves as an underlying funding vehicle) as annuity contracts or life insurance contracts under applicable provisions of the Code other than where such failure arises from the Funds' non-compliance with Subchapter M of the Code or Section 817 of the Code.

OF COMPANY BY FAIP AND ADVISOR. (a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e), hereof, FAIP and the Advisor agree to indemnify and hold harmless Company, its affiliates, and each person, if any, who controls Company or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses), to which the Indemnified Parties may become subject under any statute, regulation, at common law, or otherwise; provided, insofar as such losses, claims, damages, liabilities or actions are related to the sale or acquisition of FAIP's shares or the Contracts and: (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in FAIP's 1933 Act registration statement, FAIP Prospectus or sales literature or advertising of FAIP (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished in writing to FAIP or its affiliates by or on behalf of Company or its affiliates specifically for use in FAIP's 1933 Act registration statement, FAIP Prospectus, or in sales literature or advertising or otherwise for use in connection with the sale of Contracts or Shares (or any amendment or supplement to any of the foregoing) or was consented to by Company pursuant to Section 4.6(d); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of FAIP or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of FAIP or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons" as that Term is defined in Section (ee) of Article 1 of the NASD By-Laws), in connection with the sale or distribution of FAIP Shares; or (iii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with information furnished in writing to Company or its affiliates by or on behalf of FAIP or its affiliates specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing or was consented to by FAIP pursuant to Section 4.5(c); or (iv) arise as a result of any failure by FAIP or the Advisor to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, or any material breach of any representation and/or warranty made by FAIP or the Advisor in this Agreement or arise out of or result from any other material breach of this Agreement by FAIP or the Advisor. (b) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e) hereof, FAIP and the Advisor agree to indemnify and hold harmless the Indemnified Parties from and against any and all losses, claims, damages, liabilities (including amounts paid in settlement thereof with, the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses) to which the Indemnified Parties may become subject directly or indirectly under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities or actions directly or indirectly result from or arise out of the failure of any Fund to operate as a regulated investment company in compliance with (i) Subchapter M of the Code and regulations thereunder, or (ii) Section 817(h) of the Code and regulations thereunder, including, without limitation, any income taxes and related penalties, rescission charges, liability under state law to Participants asserting liability against Company pursuant to the Contracts, the costs of any ruling and closing agreement or other settlement with the IRS, and the cost of any substitution by Company of Shares of another investment company or portfolio for those of any adversely affected Fund as a funding medium for each account that Company reasonably deems necessary or appropriate as a result of the noncompliance. (c) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any losses, claims, damages, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Party of its duties or by reason of such Indemnified Party's reckless disregard of its obligations and duties under this Agreement. (d) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified FAIP in writing within a reasonable time after the summons or other first legal process giving information of the nature of the action shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify FAIP of any such action shall not relieve FAIP from any liability which it may have to the Indemnified Party against whom such action is brought unless the ability of Company to defend such action is materially impaired thereby, except as otherwise provided herein, in case any such action is brought against an Indemnified Party and/or FAIP will be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement proceeding with the IRS), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from FAIP to such Indemnified Party of FAIP's election to assume the defense thereof, the Indemnified Party will cooperate fully with FAIP and shall bear the fees and expenses of any additional counsel retained by it, and FAIP will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other than reasonable costs of investigation. (e) In no event shall FAIP and the Advisor be liable under the indemnification provisions contained in this Agreement to any Indemnified Party, with respect to any losses, claims, damages, liabilities or expenses that arise out of or result from (i) a breach of any representation, warranty, and/or covenant made by Company; (ii) the failure by Company to maintain its segregated asset account (which invests in any Fund) as a legally and validly established segregated asset account under applicable state law and as a duly registered unit investment trust under the provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure by Company to maintain its variable annuity or life insurance contracts (with respect to which any Fund serves as an underlying funding vehicle) as annuity contracts or life insurance contracts under applicable provisions of the Code other than where such failure arises from the Funds' non-non- compliance with Subchapter M of the Code or Section 817 of the Code.

OF COMPANY BY FAIP AND ADVISOR. (a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e), hereof, FAIP and the Advisor agree to indemnify and hold harmless Company, its affiliates, and each person, if any, who controls Company or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses), to which the Indemnified Parties may become subject under any statute, regulation, at common law, or otherwise; provided, insofar as such losses, claims, damages, liabilities or actions are related to the sale or acquisition of FAIP's shares or the Contracts and: (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in FAIP's 1933 Act registration statement, FAIP Prospectus or sales literature or advertising of FAIP (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished in writing to FAIP or its affiliates by or on behalf of Company or its affiliates specifically for use in FAIP's 1933 Act registration statement, FAIP Prospectus, or in sales literature or advertising or otherwise for use in connection with the sale of Contracts or Shares (or any amendment or supplement to any of the foregoing) or was consented to by Company pursuant to Section 4.6(d); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of FAIP or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of FAIP or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons" as that Term is defined in Section (ee) of Article 1 I of the NASD By-Laws), in connection with the sale or distribution of FAIP Shares; or (iii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with information furnished in writing to Company or its affiliates by or on behalf of FAIP or its affiliates specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing or was consented to by FAIP pursuant to Section 4.5(c); or (iv) arise as a result of any failure by FAIP or the Advisor to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, or any material breach of any representation and/or warranty made by FAIP or the Advisor in this Agreement or arise out of or result from any other material breach of this Agreement by FAIP or the Advisor. (b) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e) hereof, FAIP and the Advisor agree to indemnify and hold harmless the Indemnified Parties from and against any and all losses, claims, damages, liabilities (including amounts paid in settlement thereof with, the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses) to which the Indemnified Parties may become subject directly or indirectly under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities or actions directly or indirectly result from or arise out of the failure of any Fund fund to operate as a regulated investment company in compliance with (i) Subchapter M of the Code and regulations thereunder, or (ii) Section 817(h) of the Code and regulations thereunder, including, without limitation, any income taxes and related penalties, rescission charges, liability under state law to Participants asserting liability against Company pursuant to the Contracts, the costs of any ruling and closing agreement or other settlement with the IRS, and the cost of any substitution by Company of Shares of another investment company or portfolio for those of any adversely affected Fund fund as a funding medium for each account that Company reasonably deems necessary or appropriate as a result of the noncompliance. (c) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any losses, claims, damages, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Party of its duties or by reason of such Indemnified Party's reckless disregard of its obligations and duties under this Agreement. (d) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified FAIP in writing within a reasonable time after the summons or other first legal process giving information of the nature of the action shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such such. service on any designated agent), but failure to notify FAIP of any such action shall not relieve FAIP from any liability which it may have to the Indemnified Party against whom such action is brought unless the ability of Company to defend such action is materially impaired thereby, except as otherwise provided herein, in case any such action is brought against an Indemnified Party and/or FAIP will be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement proceeding with the IRS), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from FAIP to such Indemnified Party of FAIP's election to assume the defense thereof, the Indemnified Party will cooperate fully with FAIP and shall bear the fees and expenses of any additional counsel retained by it, and FAIP will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other than reasonable costs of investigation. (e) In no event shall FAIP and the Advisor be liable under the indemnification provisions contained in this Agreement to any Indemnified Party, with respect to any losses, claims, damages, liabilities or expenses that arise out of or result from (i) a breach of any representation, warranty, and/or covenant made by Company; (ii) the failure by Company to maintain its segregated asset account (which invests in any Fund) as a legally and validly established segregated asset account under applicable state law and as a duly registered unit investment trust under the provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure by Company to maintain its variable annuity or life insurance contracts (with respect to which any Fund serves as an underlying funding vehicle) as annuity contracts or life insurance contracts under applicable provisions of the Code other than where such failure arises from the Funds' non-compliance with Subchapter M of the Code or Section 817 of the Code.

OF COMPANY BY FAIP AND ADVISOR. (a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e), hereof, FAIP and the Advisor agree to indemnify and hold harmless Company, its affiliates, and each person, if any, who controls Company or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors directors, officers, employees and officersagents, (collectively, the "Indemnified Parties" for purposes of this Section 12.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses), to which the Indemnified Parties may become subject under any statute, regulation, at common law, or otherwise; provided, insofar as such losses, claims, damages, liabilities or actions are related to the sale or acquisition of FAIP's shares Shares or the Contracts and: (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in FAIP's 1933 Act registration statement, FAIP Prospectus or sales literature or advertising of FAIP (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished in writing to FAIP or its affiliates by or on behalf of Company or its affiliates specifically for use in FAIP's 1933 Act registration statement, FAIP Prospectus, or in sales literature or advertising or otherwise for use in connection with the sale of Contracts or Shares (or any amendment or supplement to any of the foregoing) or was consented to by Company pursuant to Section 4.6(d); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of FAIP or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of FAIP or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons" as that Term is defined in Section (ee) of Article 1 of the NASD By-Laws), in connection with the sale or distribution of FAIP Shares; or (iii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with information furnished in writing to Company or its affiliates by or on behalf of FAIP or its affiliates specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing or was consented to by FAIP pursuant to Section 4.5(c); or (iv) arise as a result of any failure by FAIP or the Advisor to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, or any material breach of any representation and/or warranty made by FAIP or the Advisor in this Agreement or arise out of or result from any other material breach of this Agreement by FAIP or the Advisor. (b) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e) hereof, FAIP and the Advisor agree to indemnify and hold harmless the Indemnified Parties from and against any and all losses, claims, damages, liabilities (including amounts paid in settlement thereof with, the written consent of FAIP) or actions in respect thereof (including, to the extent reasonable, legal and other expenses) to which the Indemnified Parties may become subject directly or indirectly under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities or actions directly or indirectly result from or arise out of the failure of any Fund to (i) operate as a regulated investment company in compliance with (i) Subchapter M of the Code and regulations thereunder, or (ii) to comply with Section 817(h) of the Code and regulations thereunder, including, without limitation, any income taxes and related penalties, rescission charges, liability under state law to Participants asserting liability against Company pursuant to the Contracts, the costs of any ruling and closing agreement or other settlement with the IRS, and the cost of any substitution by Company of Shares of another investment company or portfolio for those of any adversely affected Fund as a funding medium for each account that Company reasonably deems necessary or appropriate as a result of the noncompliance. (c) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any losses, claims, damages, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Party of its duties or by reason of such Indemnified Party's reckless disregard of its obligations and duties under this Agreement. (d) FAIP and the Advisor shall not be liable under this Section 12.2 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified FAIP in writing within a reasonable time after the summons or other first legal process giving information of the nature of the action shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify FAIP of any such action shall not relieve FAIP from any liability which it may have to the Indemnified Party against whom such action is brought unless the ability of Company to defend such action is materially impaired thereby, except as otherwise provided herein, in case any such action is brought against an Indemnified Party and/or FAIP will be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement proceeding with the IRS), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from FAIP to such Indemnified Party of FAIP's election to assume the defense thereof, the Indemnified Party will cooperate fully with FAIP and shall bear the fees and expenses of any additional counsel retained by it, and FAIP will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other than reasonable costs of investigation. (e) In no event shall FAIP and the Advisor be liable under the indemnification provisions contained in this Agreement to any Indemnified Party, with respect to any losses, claims, damages, liabilities or expenses that arise out of or result from (i) a breach of any representation, warranty, and/or covenant made by Company; (ii) the failure by Company to maintain its segregated asset account (which invests in any Fund) as a legally and validly established segregated asset account under applicable state law and as a duly registered unit investment trust under the provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure by Company to maintain its variable annuity or life insurance contracts (with respect to which any Fund serves as an underlying funding vehicle) as annuity contracts or life insurance contracts under applicable provisions of the Code other than where such failure arises from the Funds' non-compliance with Subchapter M of the Code or Section 817 of the Code.