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

OF FAIP AND THE ADVISOR BY COMPANY. (a) Except to the extent provided in Sections 12.1(b), 12.1(c), and 12.1(d), hereof, Company agrees to indemnify and hold harmless FAIP and the Advisor, and each person, if any, who controls FAIP within the meaning of Section 15 of the 1933 Act and each of its directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.1) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Company) 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, the Account owns or at the relevant time owned shares of the Funds and insofar as such losses, claims, damages, liabilities or actions and are related to the sale or acquisition of Fund 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 any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (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 Company by or on behalf of FAIP specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or 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 FAIP pursuant to Section 4.5(c); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in FAIP's 1933 Act registration statement, FAIP Prospectus, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of Company or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of Company or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons," as that term is defined in paragraph (m) of Article I of the NASD's By-Laws), in connection with the sale or distribution of the Contracts or Shares; or (iii) 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, sales literature or advertising of FAIP, 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 a 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, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing or was consented to by Company pursuant to Section 4.6 (d); or (iv) arise as a result of any failure by Company to perform the obligations, provide the services and furnish the materials required of them under the terms of this Agreement, or any material breach of any representation and/or warranty made by Company in this Agreement or arise out of or result from any other material breach of this Agreement by Company; or (v) arise as a result of failure by the Contracts issued by Company to qualify as annuity contracts or life insurance contracts under the Code, otherwise than by reason of any Fund's failure to comply with Subchapter M or Section 817(h) of the Code. (b) Company shall not be liable under this Section 12.1 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 that Indemnified Party's reckless disregard of obligations or duties under this Agreement; (c) Company shall not be liable under this Section 12.1 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified Company 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 Company of any such action shall not relieve Company from any liability which they 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, Company shall be entitled to participate, at their own expense, in the defense of such action and also shall be entitled to assume the defense thereof, with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from Company to such Indemnified Party of Company's election to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request or closing agreement or offer settlement proceeding with the IRS), the Indemnified Party will cooperate fully with Company and shall bear the fees and expenses of any additional counsel retained by it, and Company 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. (d) In no event shall the Company 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 FAIP or Advisor hereunder; (ii) the failure by FAIP to qualify as a legally and validly established corporation under applicable state law and as duly registered under the 1940 Act; or (iii) the failure by FAIP or Advisor to maintain the qualification of any Fund under Subchapter M of the Code or Section 817 of the Code.

OF FAIP AND THE ADVISOR BY COMPANY. (a) Except to the extent provided in Sections 12.1(b), 12.1(c), and 12.1(d), hereof, Company agrees to indemnify and hold harmless FAIP and the Advisor, and each person, if any, who controls FAIP within the meaning of Section 15 of the 1933 Act and each of its directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.1) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Company) 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, the Account owns or at the relevant time owned shares of the Funds and insofar as such losses, claims, damages, liabilities or actions and are related to the sale or acquisition of Fund 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 any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (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 Company by or on behalf of FAIP specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or 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 FAIP pursuant to Section 4.5(c); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in FAIP's 1933 Act registration statement, FAIP Prospectus, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of Company or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of Company or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons," as that term is defined in paragraph (m) of Article I of the NASD's By-Laws), in connection with the sale or distribution of the Contracts or Shares; or (iii) 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, sales literature or advertising of FAIP, 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 a 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, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing or was consented to by Company pursuant to Section 4.6 (d); or (iv) arise as a result of any failure by Company to perform the obligations, provide the services and furnish the materials required of them under the terms of this Agreement, or any material breach of any representation and/or warranty made by Company in this Agreement or arise out of or result from any other material breach of this Agreement by Company; or (v) arise as a result of failure by the Contracts issued by Company to qualify as annuity contracts or life insurance contracts under the Code, otherwise than by reason of any Fund's failure to comply with Subchapter M or Section 817(h) of the Code. (b) Company shall not be liable under this Section 12.1 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 that Indemnified Party's reckless disregard of obligations or duties under this Agreement; (c) Company shall not be liable under this Section 12.1 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified Company 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 Company of any such action shall not relieve Company from any liability which they 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, Company shall be entitled to participate, at their own expense, in the defense of such action and also shall be entitled to assume the defense thereof, with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from Company to such Indemnified Party of Company's election to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request or closing agreement or offer settlement proceeding with the IRS), the Indemnified Party will cooperate fully with Company and shall bear the fees and expenses of any additional counsel retained by it, and Company 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. (d) In no event shall the Company 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 FAIP or Advisor hereunder; (ii) the failure by FAIP to qualify as a legally and validly established corporation under applicable state law and as duly registered under the 1940 Act; or (iii) the failure by FAIP or Advisor to maintain the qualification of any Fund under Subchapter M of the Code or Section 817 of the Code.

OF FAIP AND THE ADVISOR BY COMPANY. (a) Except to the extent provided in Sections 12.1(b), 12.1(c), and 12.1(d), hereof, Company agrees to indemnify and hold harmless FAIP and the Advisor, and each person, if any, who controls FAIP within the meaning of Section 15 of the 1933 Act and each of its directors directors, officers, employees and officersagents, (collectively, the "Indemnified Parties" for purposes of this Section 12.1) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Company) 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, the Account owns or at the relevant time owned shares of the Funds and insofar as such losses, claims, damages, liabilities or actions and are related to the sale or acquisition of Fund 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 any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (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 Company by or on behalf of FAIP specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or 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 FAIP pursuant to Section 4.5(c); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in FAIP's 1933 Act registration statement, FAIP Prospectus, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of Company or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of Company or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons," as that term is defined in paragraph (m) of Article I of the NASD's By-Laws), in connection with the sale or distribution of the Contracts or Shares; or (iii) 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, sales literature or advertising of FAIP, 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 a 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, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing or was consented to by Company pursuant to Section 4.6 (d); or (iv) arise as a result of any failure by Company to perform the obligations, provide the services and furnish the materials required of them under the terms of this Agreement, or any material breach of any representation and/or warranty made by Company in this Agreement or arise out of or result from any other material breach of this Agreement by Company; or (v) arise as a result of failure by the Contracts issued by Company to qualify as annuity contracts or life insurance contracts under the Code, otherwise than by reason of any Fund's failure to comply with Subchapter M or Section 817(h) of the Code. (b) Company shall not be liable under this Section 12.1 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 that Indemnified Party's reckless disregard of obligations or duties under this Agreement; (c) Company shall not be liable under this Section 12.1 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified Company 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 Company of any such action shall not relieve Company from any liability which they 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, Company shall be entitled to participate, at their own expense, in the defense of such action and also shall be entitled to assume the defense thereof, with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from Company to such Indemnified Party of Company's election to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request or closing agreement or offer settlement proceeding with the IRS), the Indemnified Party will cooperate fully with Company and shall bear the fees and expenses of any additional counsel retained by it, and Company 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. (d) In no event shall the Company 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 FAIP or Advisor hereunder; (ii) the failure by FAIP to qualify as a legally and validly established corporation under applicable state law and as duly registered under the 1940 Act; or (iii) the failure by FAIP or Advisor to maintain the qualification of any Fund under Subchapter M of the Code or Section 817 of the Code.

OF FAIP AND THE ADVISOR BY COMPANY. (a) Except to the extent provided in Sections 12.1(b), 12.1(c), and 12.1(d), hereof, Company agrees to indemnify and hold harmless FAIP and the Advisor, and each person, if any, who controls FAIP within the meaning of Section 15 of the 1933 Act and each of its directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.1) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Company) 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, the Account owns or at the relevant time owned shares of the Funds and insofar as such losses, claims, damages, liabilities or actions and are related to the sale or acquisition of Fund 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 any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (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 Company by or on behalf of FAIP specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or 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 FAIP pursuant to Section 4.5(c); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in FAIP's 1933 Act registration statement, FAIP Prospectus, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of Company or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of Company or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons," as that term is defined in paragraph (m) of Article I of the NASD's By-Laws), in connection with the sale or distribution of the Contracts or Shares; or (iii) 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, sales literature or advertising of FAIP, 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 a 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, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing or was consented to by Company pursuant to Section 4.6 (d); or (iv) arise as a result of any failure by Company to perform the obligations, provide the services and furnish the materials required of them under the terms of this Agreement, or any material breach of any representation and/or warranty made by Company in this Agreement or arise out of or result from any other material breach of this Agreement by Company; or (v) arise as a result of failure by the Contracts issued by Company to qualify as annuity contracts or life insurance contracts under the Code, otherwise than by reason of any Fund's failure to comply with Subchapter M or Section 817(h) of the Code. (b) Company shall not be liable under this Section 12.1 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 that Indemnified Party's reckless disregard of obligations or duties under this Agreement; (c) Company shall not be liable under this Section 12.1 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified Company 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 Company of any such action shall not relieve Company from any liability which they 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, Company shall be entitled to participate, at their own expense, in the defense of such action and also shall be entitled to assume the defense thereof, with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from Company to such Indemnified Party of Company's election to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request or closing agreement or offer settlement proceeding with the IRS), the Indemnified Party will cooperate fully with Company and shall bear the fees and expenses of any additional counsel retained by it, and Company 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. (d) In no event shall the Company 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 FAIP or Advisor hereunder; (ii) the failure by FAIP to qualify as a legally and validly established corporation under applicable state law and as duly registered under the 1940 Act; or (iii) the failure by FAIP or Advisor to maintain the qualification of any Fund under Subchapter M of the Code or Section 817 of the Code.of

OF FAIP AND THE ADVISOR BY COMPANY. (a) Except to the extent provided in Sections 12.1(b), 12.1(c), and 12.1(d), hereof, Company agrees to indemnify and hold harmless FAIP and the Advisor, and each person, if any, who controls FAIP within the meaning of Section 15 of the 1933 Act and each of its directors and officers, (collectively, the "Indemnified Parties" for purposes of this Section 12.1) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Company) 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, the Account owns or at the relevant time owned shares of the Funds and insofar as such losses, claims, damages, liabilities or actions and are related to the sale or acquisition of Fund 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 any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (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 Company by or on behalf of FAIP specifically for use in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or 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 FAIP pursuant to Section 4.5(c); or (ii) arise out of or as a result of any other statements or representations (other than statements or representations contained in FAIP's 1933 Act registration statement, FAIP Prospectus, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of Company or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of Company or its affiliates or persons under their control (including, without limitation, their employees and "Associated Persons," as that term is defined in paragraph (m) of Article I of the NASD's By-Laws), in connection with the sale or distribution of the Contracts or Shares; orof (iii) 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, sales literature or advertising of FAIP, 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 a 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, sales literature or advertising of FAIP, or any amendment or supplement to any of the foregoing or was consented to by Company pursuant to Section 4.6 (d); or (iv) arise as a result of any failure by Company to perform the obligations, provide the services and furnish the materials required of them under the terms of this Agreement, or any material breach of any representation and/or warranty made by Company in this Agreement or arise out of or result from any other material breach of this Agreement by Company; or (v) arise as a result of failure by the Contracts issued by Company to qualify as annuity contracts or life insurance contracts under the Code, otherwise than by reason of any Fund's failure to comply with Subchapter M or Section 817(h) of the Code. (b) Company shall not be liable under this Section 12.1 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 that Indemnified Party's reckless disregard of obligations or duties under this Agreement; (c) Company shall not be liable under this Section 12.1 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified Company 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 Company of any such action shall not relieve Company from any liability which they 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, Company shall be entitled to participate, at their own expense, in the defense of such action and also shall be entitled to assume the defense thereof, with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from Company to such Indemnified Party of Company's election to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request or closing agreement or offer settlement proceeding with the IRS), the Indemnified Party will cooperate fully with Company and shall bear the fees and expenses of any additional counsel retained by it, and Company 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. (d) In no event shall the Company 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 FAIP or Advisor hereunder; (ii) the failure by FAIP to qualify as a legally and validly established corporation under applicable state law and as duly registered under the 1940 Act; or (iii) the failure by FAIP or Advisor to maintain the qualification of any Fund under Subchapter M of the Code or Section 817 of the Code.