Standard of Care and Indemnification. (a) Xxxxxx will indemnify and hold harmless FDI, its officers, employees and agents and any persons who control FDI (together "FDI and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI and its employees may become subject, including amounts paid in settlement with the prior written consent of Xxxxxx, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx to comply with the terms of this Agreement; Xxxxxx will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx shall not be liable to FDI for any action taken or omitted by FDI in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 Xxx. (x) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; FDI will reimburse Xxxxxx for reasonable legal or other expenses reasonably incurred by Xxxxxx in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx for any action taken or omitted by Xxxxxx in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by Xxxxxx of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx and any person controlling Xxxxxx within the meaning of Section 15 for the 1933 Act or Section 20 of the 1934 Act. (c) The obligation to indemnify and provide contribution pursuant to this Section 6 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Sub Administration Agreement (Ht Insight Funds Inc), Sub Administration Agreement (Harris Insight Funds Trust)
Standard of Care and Indemnification. (a) Xxxxxx TDAM will indemnify and hold harmless FDIBISYS, its officers, employees and agents and any persons who control FDI BISYS (together "FDI BISYS and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI BISYS and its employees may become subject, including amounts paid in settlement with the prior written consent of XxxxxxTDAM, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx TDAM to comply with the terms of this Agreement;
(b) BISYS will indemnify and hold harmless TDAM, its officers, employees and agents and any persons who control TDAM (together "TDAM and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which TDAM and its employees may become subject, including amounts paid in settlement with the prior written consent of BISYS, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of BISYS to comply with the terms of this Agreement; Xxxxxx TDAM will reimburse FDI BISYS and its employees for reasonable legal or other expenses reasonably incurred by FDI BISYS and its employees in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx TDAM shall not be liable to FDI BISYS for any action taken or omitted by FDI BISYS in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI BISYS of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI BISYS that serve as officers or directors of the Fund and to each of the directors and officers of FDI BISYS and any person controlling FDI BISYS within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 Xxx.
Section 20 of the Securities Exchange Act of 1934 (x) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees1934 Act") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; FDI ). BISYS will reimburse Xxxxxx TDAM for reasonable legal or other expenses reasonably incurred by Xxxxxx TDAM in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI BISYS shall not be liable to Xxxxxx TDAM for any action taken or omitted by Xxxxxx TDAM in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by Xxxxxx TDAM of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx TDAM and any person controlling Xxxxxx TDAM within the meaning of Section 15 for the 1933 Act or Section 20 of the 1934 Act.
(ci) Promptly after an indemnified party (or, if such indemnified party is not a natural person, a responsible officer of such indemnified party) receives notice or otherwise becomes aware of the commencement of any action or other assertion of any losses, claims, damages or liabilities by any third party, such indemnified party shall, if a claim in respect thereof is to be made pursuant to this Section 5, notify the indemnitor of the same in writing (such notice, a "claim notice"); but the omission so to notify the indemnitor will not relieve the indemnitor from any liability that it may have to such indemnified party otherwise than under this Section 5. In the event that the indemnified party notifies the indemnitor in writing of its waiver of any right to indemnification pursuant to this Section 5 in respect of any losses, claims, damages or liabilities or portion thereof, the provisions of clause (ii) of this Section 5(c) shall not apply.
(ii) Promptly following receipt of a claim notice, the indemnitor, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnitor may designate in contesting such losses, claims, damages or liabilities and shall pay the reasonable fees and disbursements of such counsel related to such contest. In any such contest, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (A) the indemnitor and the indemnified party shall have mutually agreed to the retention of such counsel or (B) the named parties to any such contest (including any impleaded parties) include both the indemnitor and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one firm for all such indemnified parties. The indemnitor may, at its option, at any time upon written notice to the indemnified party, assume the responsibility for contesting any losses, claims, damages or liabilities and may designate counsel satisfactory to the indemnified party in connection therewith provided that the counsel so designated would have no actual or potential conflict of interest in connection with such representation. Unless it shall assume the responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall not be liable for any settlement or compromise of such losses, claims, damages or liabilities or portion thereof which settlement or compromise is effected without its written consent, but if settled or compromised with such consent or if there be a final judgment for the plaintiff asserting such losses, claims or liabilities, the indemnitor agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement, compromise or judgment. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, it shall be entitled to settle or compromise such losses, claims, damages or liabilities or portion thereof with the consent of the indemnified party or, if such settlement or compromise provides for release of the indemnified party in connection with all matters relating to such losses, claims, damages or liabilities, or, with respect to the settlement or compromise of a portion of such losses, claims, damages or liabilities, all matters relating to such portion of such losses, claims, damages or liabilities, that have been asserted against the indemnified party by the other parties to such settlement or compromise, without the consent of the indemnified party. In the event that any expense paid by the indemnitor pursuant to this Section 5(c) is subsequently determined to not be required to be borne by the indemnitor, the indemnified party that received such payment shall promptly refund the amount so paid to the indemnitor. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall keep the indemnified party apprised, on a current basis, of matters concerning such contest, including without limitation (i) providing the indemnified party with reasonable notice of and opportunity to be present in person and/or by counsel at proceedings or discussions of settlement or compromise; (ii) providing the indemnified party with copies of and opportunity to comment on filings, papers or settlement agreements proposed to be filed or served by or on behalf of the indemnitor; and (iii) providing the indemnified party with copies of filings, papers and proposed settlement agreements received by the indemnitor from or on behalf of persons asserting such losses, claims, damages or liabilities.
(d) The obligation to indemnify and provide contribution pursuant to this Section 6 5 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Sub Administration Agreement (TD Asset Management USA Funds Inc.)
Standard of Care and Indemnification. (a) Xxxxxx will Beacon Hill shall use its best judgment and reasonable care in rendering services to the Trust under this Agreement. Beacon Hill shall not be liable to the Trust or any of the Trust’s shareholders for any error of judgment or mistake of law, for any loss or for any action or inaction in the absence of negligence, bad faith or willful misfeasance in the performance of the its duties or obligations under this Agreement or by reason of the its reckless disregard of its duties and obligations to the Trust under this Agreement.
(b) Each party (an “Indemnitor”) shall indemnify and hold harmless FDIthe other party, its each of such other party’s affiliated persons, and all directors, officers, and employees of such other party (“Indemnified Parties”), against any and agents and all losses, damages, or liabilities or any persons who control FDI (together "FDI and its employees") and hold each of them harmless from any lossespending or completed actions, claims, damages suits, complaints or liabilitiesinvestigations (including all reasonable expenses of litigation or arbitration), judgments, fines or actions in respect thereof, to which FDI and its employees may become subject, including amounts paid in any settlement with consented to by the prior written consent of XxxxxxIndemnitor (collectively, insofar “Losses”) to which any Indemnified Party may become subject to as such losses, claims, damages a result or liabilities, or actions in respect thereof, arise arising out of or result from relating to: (1) any negligent acts, omissions, bad faith or willful misconduct in the performance of Indemnitor’s duties and obligations hereunder; (2) any breach of the Indemnitor’s representations or warranties contained in this Agreement; (3) Indemnitor’s failure of Xxxxxx to comply with the any terms of this Agreement; Xxxxxx will reimburse FDI and its employees or (4) any action of an Indemnified Party, upon instructions believed in good faith by the Indemnified Party to have been executed by a duly authorized officer or representative of the Indemnitor. Provided that, no party shall have any obligation to indemnify the other party for reasonable legal or any Losses that such other expenses reasonably incurred by FDI and its employees in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx shall not party would otherwise be liable to FDI for any action taken for, in whole or omitted in part, by FDI in reason of such other party’s willful misfeasance, bad faith, with willful misfeasance negligence or gross negligence, or with reckless disregard by FDI of its duties and obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 Xxx.
(x) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of under this Agreement; FDI will reimburse Xxxxxx for reasonable legal or other expenses reasonably incurred by Xxxxxx in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx for any action taken or omitted by Xxxxxx in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by Xxxxxx of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx and any person controlling Xxxxxx within the meaning of Section 15 for the 1933 Act or Section 20 of the 1934 Act.
(c) The obligation In order that the indemnification provisions contained herein shall apply, upon the assertion of a claim or a loss for which either party may be required to indemnify the other, the party seeking indemnification shall promptly notify the other party of such assertion or loss, and provide contribution pursuant shall keep the other advised with respect to all developments concerning such claim. The party who may be required to indemnify may, within ninety (90) days of receiving notice of such claim, request to control the defense of such claim and the party seeking indemnification shall tender such control. Upon tendering control of the defense of such claim, the party seeking indemnification shall have the option to participate at its expense in the defense of such claim. In this event, the party seeking indemnification may not settle, compromise or consent to judgment except with the other party’s prior written consent, which consent shall not be unreasonably withheld. The obligations of the parties hereto under this Section 6 shall survive the termination of this the Agreement.
Appears in 1 contract
Standard of Care and Indemnification. (a) Xxxxxx will The Corporation or the Company, as the case may be, shall cause each Fund to: (i) indemnify and hold harmless FDI, its officers, employees and agents and any persons who control FDI (together "FDI and its employees") and hold each of them harmless from RCM against any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI and its employees or RCM may become subject, including amounts paid in settlement with the prior written consent of Xxxxxxthe Company or the Corporation, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx the Corporation or the Company, as the case may be, to comply with the terms of this AgreementAgreement with respect to any Fund; Xxxxxx will and (ii) reimburse FDI and its employees RCM for reasonable legal or other expenses reasonably incurred by FDI and its employees or RCM in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx A Fund shall not be liable to FDI or RCM for any action taken or omitted by FDI or RCM in bad faith, with willful misfeasance misfeasance, with gross negligence or gross negligence, or with in reckless disregard by FDI or RCM of its obligations and duties hereunderduties. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and RCM and any person controlling FDI or RCM within the meaning of Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1933 1934 (the "1933 1934 Act") or Xxxxxxx 00 xx xxx 0000 Xxx).
(xb) FDI will will: (i) indemnify and hold harmless Xxxxxx, its officers, employees each Fund and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees") and hold each of them harmless from RCM against any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees a Fund or RCM may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; FDI will and (ii) reimburse Xxxxxx each Fund and RCM for reasonable legal or other expenses reasonably incurred by Xxxxxx such Fund or RCM in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx a Fund or RCM for any action taken or omitted by Xxxxxx such Fund or RCM in bad faith, with willful misfeasance with, gross negligence or gross negligence, in reckless disregarded by such Fund or with reckless disregard by Xxxxxx RCM of its obligations and duties hereunderduties. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx each of the Company, the Corporation, and RCM and any person controlling Xxxxxx the Company, the Corporation or RCM within the meaning of Section 15 for of the 1933 Act or Section 20 of the 1934 Act.
(c) The obligation to RCM will: (i) indemnify and provide contribution hold harmless each Fund and FDI against any losses, claims, damages or liabilities, or actions in respect thereof, to which a Fund or FDI may become subject, including amounts paid in settlement with the prior written consent of RCM, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of RCM to comply with the terms of this Agreement; and (ii) reimburse each Fund and FDI for reasonable legal or other expenses reasonably incurred by such Fund or FDI in connection with investigating or defending against any such loss, claim, damage, liability or action. RCM shall not be liable to a Fund or FDI for any action taken or omitted by such Fund or FDI in bad faith, with willful misfeasance with, gross negligence or in reckless disregarded by such Fund or FDI of its obligations and duties. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of each of the Company, the Corporation, and FDI and any person controlling the Company, the Corporation or FDI within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act.
(d) (i) Promptly after an indemnified party (or, if such indemnified party is not a natural person, a responsible officer of such indemnified party) receives notice or otherwise becomes aware of the commencement of any action or other assertion of any losses, claims, damages or liabilities by any third party, such indemnified party shall, if a claim in respect thereof is to be made pursuant to this Section 6, notify the indemnitor of the same in writing (such notice, a "claim notice"); but the omission so to notify the indemnitor will not relieve the indemnitor from any liability that it may have to such indemnified party otherwise than under this Section 6. The failure of an indemnified party to promptly send a claim notice shall not relieve the indemnitor from any liability except to the extent that the indemnitor shall have been prejudiced as a result of the failure or delay in giving such claim notice. In the event that the indemnified party notifies the indemnitor in writing of its waiver of any right to indemnification pursuant to this Section 6 shall survive in respect of any losses, claims, damages or liabilities or portion thereof, the termination provisions of clause (ii) of this AgreementSection 6(d) shall not apply.
Appears in 1 contract
Standard of Care and Indemnification. (a) Xxxxxx will The Trust shall indemnify and hold harmless FDI, its officers, employees directors, employees, shareholders, affiliated persons (as such term is defined in the 1000 Xxx) and agents and any persons who control FDI (together collectively the "FDI Indemnified Parties" and its employeeseach individually an "FDI Indemnified Party") and hold each of them harmless from and against any and all losses, claims, damages or damages, expenses and liabilities, joint or actions several (including, but not limited to, any reasonable investigation, legal and other expenses incurred in respect thereofconnection with, to which FDI and its employees may become subject, including amounts any amount paid in settlement with the prior written consent of Xxxxxxof, insofar as any action, suit, proceeding or claim), which such losses, claims, damages FDI Indemnified Party or liabilities, FDI Indemnified Parties may be or actions in respect thereof, arise out become subject to or liable for by reason of or result from the failure of Xxxxxx to comply with the terms of this Agreement; Xxxxxx will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating this Agreement, FDI's provision of services pursuant to this Agreement, or defending against any other matter, event or transaction in any way relating to or connected with this Agreement or the subject matter hereof; provided, however, that an FDI Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determined by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly (or action. Xxxxxx shall not be liable to indirectly contributed to) and proximately by action or omission of FDI for any and that such action taken or omitted by FDI in omission involved bad faith, with willful misfeasance negligence or gross negligence, or with reckless disregard intentional misconduct by FDI of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 XxxFDI.
(xb) FDI will shall indemnify and hold harmless Xxxxxxthe Trust, its officers, employees directors, employees, shareholders, affiliated persons (as such term is defined in 1000 Xxx) and agents (collectively the "Trust Indemnified Parties" and any persons who control Xxxxxx (together each individually an "Xxxxxx and its employeesTrust Indemnified Party") and hold each of them harmless from and against any and all losses, claims, damages or damages, expenses and liabilities, joint or actions several (including, but not limited to, any reasonable investigation, legal and other expenses incurred in respect thereofconnection with, to which Xxxxxx and its employees may become subject, including amounts any amount paid in settlement with the prior written consent of FDIof, insofar as any action, suit, proceeding or claim), which such losses, claims, damages Trust Indemnified Party or liabilities, Trust Indemnified Parties may be or actions in respect thereof, arise out of become subject to or result from the failure of FDI to comply with the terms incur by reason of this Agreement; FDI will reimburse Xxxxxx for reasonable legal Agreement or other expenses reasonably incurred by Xxxxxx in connection with investigating under the 1933 Act, the 1934 Act, common law or defending against any otherwise, but only to the extent that such loss, claim, damage, expense or liability incurred by a Trust Indemnified Party shall arise out of or be based on (i) any breach of any covenant or obligation of FDI contained in this Agreement, (ii) any failure by FDI to comply with any laws applicable with its performance of services under this Agreement or (iii) a final determination by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly or proximately by an action or omission of FDI involving bad faith, gross negligence or intentional misconduct by FDI; provided that a Trust Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determined by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly and proximately by action or omission of the Trust and that such action or omission involved bad faith, negligence or intentional misconduct by the Trust.
(c) In order to provide for just and equitable contribution in circumstances in which the terms of Section 6(a) or 6(b) are applicable, but for any reason the indemnification provided for therein is held to be unavailable, the Trust and FDI shall contribute to the aggregate losses, claims, damages, expenses and liabilities (including, but not limited to, any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or claim) which any of the FDI Indemnified Parties or Trust Indemnified Parties (as defined above), respectively, may be subject to or liable for in proportion to the relative fault of the Trust, on the one hand, and FDI, on the other hand; provided, however, that in determining relative fault, there shall be considered the relative benefits received by each party from the transactions giving rise to the loss, claim, damage, expense or liability, the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances; provided, further, that in no event shall FDI be required to contribute in the aggregate hereunder any amount in excess of the aggregate compensation received by it for its services during the immediately preceding 12 month period. Neither the Trust nor FDI shall have any other right of contribution in connection herewith.
(d) The applicable indemnified party, promptly and in any event within ten (10) days after receipt of notice of commencement of any action, suit, proceeding or claim in respect of which a claim for indemnification may be made by it, shall notify the applicable indemnifying party in writing of the commencement of such action, suit, proceeding or claim, enclosing a copy of all papers served. However, the omission to so notify the applicable indemnifying party of any such action, suit, proceeding or claim shall not relieve such indemnifying party from any liability that it may have under Section 6(a) or (b), as applicable, of this Agreement except to the extent that the ability of such indemnifying party to defend such action, suit, proceeding or claim is materially adversely affected.
(e) In case any such action, suit, proceeding or claim for which indemnity may be payable hereunder shall be brought against an FDI Indemnified Party or Trust Indemnified Party, as applicable (an "Indemnified Party"), and such Indemnified Party shall notify the applicable indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate in, and to the extent that such indemnifying party shall wish to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, subject to the further provisions of this paragraph. After written notice from such indemnifying party to such Indemnified Party of its election to so assume the defense thereof, such indemnifying party shall not be liable to Xxxxxx the applicable Indemnified Parties for any additional attorneys' fees or other expenses of litigation, other than reasonable costs of investigation subsequently incurred by such Indemnified Parties in connection with the defense thereof, unless (i) the employment of counsel by such Indemnified Parties has been authorized in writing by such indemnifying party, such authorization not to be unreasonably withheld or delayed; (ii) such Indemnified Parties shall have obtained a written opinion of counsel reasonably acceptable to such indemnifying party that there exists a conflict of interest between such Indemnified Parties and the relevant party in the conduct of the defense of such action taken or omitted that there are one or more defenses available to such Indemnified Parties that are unavailable to such indemnifying party (in which case such indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Parties); or (iii) such indemnifying party shall not in fact have employed counsel reasonably satisfactory to such Indemnified Parties to assume the defense of such action, in each of which cases the reasonable fees and expenses of counsel utilized by Xxxxxx such Indemnified Parties shall be at the expense of such indemnifying party, it being understood, however, that such indemnifying party shall not, in bad faith, connection with willful misfeasance any one such action or gross negligence, separate but substantially similar or with reckless disregard by Xxxxxx of its obligations and duties hereunder. The indemnities related actions in this Section shall, upon the same terms jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and conditionsexpenses of more than one separate firm of attorneys for an Indemnified Party, extend which firm shall be designated in writing by the Indemnified Party. Notwithstanding the foregoing, under the circumstances described in clause (ii) above, the applicable Indemnified Parties shall be entitled to and inure retain an additional law firm, in any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, provided such Indemnified Parties have obtained a written opinion of counsel reasonably acceptable to the benefit indemnifying party that a conflict of each interest exists that would preclude the use of a single law firm, in which case the directors and officers of Xxxxxx and any person controlling Xxxxxx within the meaning of Section 15 indemnifying party shall be liable for the 1933 Act or Section 20 reasonable fees and expenses of counsel designated by the 1934 ActIndemnified Parties in writing. All such fees and expenses which are at the expense of an indemnifying party hereunder shall be promptly paid by such indemnifying party.
(cf) The obligation Nothing in this Agreement shall be construed as limiting an Indemnified Party's rights to indemnify and provide contribution pursuant employ counsel at its own expense or to this Section 6 obtain indemnification for amounts reasonably paid to adverse claimants in satisfaction of any judgments or in settlement of any actions, suit, proceeding or claims, except that no party hereto shall survive be liable for any settlement of any action, suit, proceeding or claim effected without its written consent. None of the termination parties hereto shall settle or compromise any action, suit, proceeding or claim if such settlement or compromise provides for an admission of this Agreementliability on the part of an Indemnified Party without such Indemnified Party's written consent.
Appears in 1 contract
Standard of Care and Indemnification. (a) Xxxxxx TD Waterhouse will indemnify and hold harmless FDI, its officers, employees and agents and any persons who control FDI (together "FDI and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI and its employees may become subject, including amounts paid in settlement with the prior written consent of XxxxxxTD Waterhouse, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx TD Waterhouse to comply with the terms of this Agreement;
(b) FDI will indemnify and hold harmless TD Waterhouse, its officers, employees and agents and any persons who control TD Waterhouse (together "TD Waterhouse and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which TD Waterhouse and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; Xxxxxx TD Waterhouse will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx TD Waterhouse shall not be liable to FDI for any action taken or omitted by FDI in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors trustees of the Fund Trust and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 Xxx.
Section 20 of the Securities Exchange Act of 1934 (x) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees1934 Act") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; ). FDI will reimburse Xxxxxx TD Waterhouse for reasonable legal or other expenses reasonably incurred by Xxxxxx TD Waterhouse in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx TD Waterhouse for any action taken or omitted by Xxxxxx TD Waterhouse in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by Xxxxxx TD Waterhouse of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx TD Waterhouse and any person controlling Xxxxxx TD Waterhouse within the meaning of Section 15 for the 1933 Act or Section 20 of the 1934 Act.
(ci) Promptly after an indemnified party (or, if such indemnified party is not a natural person, a responsible officer of such indemnified party) receives notice or otherwise becomes aware of the commencement of any action or other assertion of any losses, claims, damages or liabilities by any third party, such indemnified party shall, if a claim in respect thereof is to be made pursuant to this Section 5, notify the indemnitor of the same in writing (such notice, a "claim notice"); but the omission so to notify the indemnitor will not relieve the indemnitor from any liability that it may have to such indemnified party otherwise than under this Section 5. In the event that the indemnified party notifies the indemnitor in writing of its waiver of any right to indemnification pursuant to this Section 5 in respect of any losses, claims, damages or liabilities or portion thereof, the provisions of clause (ii) of this Section 5(c) shall not apply.
(ii) Promptly following receipt of a claim notice, the indemnitor, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnitor may designate in contesting such losses, claims, damages or liabilities and shall pay the reasonable fees and disbursements of such counsel related to such contest. In any such contest, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (A) the indemnitor and the indemnified party shall have mutually agreed to the retention of such counsel or (B) the named parties to any such contest (including any impleaded parties) include both the indemnitor and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one firm for all such indemnified parties. The indemnitor may, at its option, at any time upon written notice to the indemnified party, assume the responsibility for contesting any losses, claims, damages or liabilities and may designate counsel satisfactory to the indemnitor in connection therewith provided that the counsel so designated would have no actual or potential conflict of interest in connection with such representation. Unless it shall assume the responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall not be liable for any settlement or compromise of such losses, claims, damages or liabilities or portion thereof which settlement or compromise is effected without its written consent, but if settled or compromised with such consent or if there be a final judgment for the plaintiff asserting such losses, claims or liabilities, the indemnitor agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement, compromise or judgment. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, it shall be entitled to settle or compromise such losses, claims, damages or liabilities or portion thereof with the consent of the indemnified party or, if such settlement or compromise provides for release of the indemnified party in connection with all matters relating to such losses, claims, damages or liabilities, or, with respect to the settlement or compromise of a portion of such losses, claims, damages or liabilities, all matters relating to such portion of such losses, claims, damages or liabilities, that have been asserted against the indemnified party by the other parties to such settlement or compromise, without the consent of the indemnified party. In the event that any expense paid by the indemnitor pursuant to this Section 6(c) is subsequently determined to not be required to be borne by the indemnitor, the indemnified party that received such payment shall promptly refund the amount so paid to the indemnitor. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall keep the indemnified party apprised, on a current basis, of matters concerning such contest, including without limitation (i) providing the indemnified party with reasonable notice of and opportunity to be present in person and/or by counsel at proceedings or discussions of settlement or compromise; (ii) providing the indemnified party with copies of and opportunity to comment on filings, papers or settlement agreements proposed to be filed or served by or on behalf of the indemnitor; and (iii) providing the indemnified party with copies of filings, papers and proposed settlement agreements received by the indemnitor from or on behalf of persons asserting such losses, claims, damages or liabilities.
(d) The obligation to indemnify and provide contribution pursuant to this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Standard of Care and Indemnification. (a) Xxxxxx will OFS shall give the Trust the benefit of its best judgment and efforts in rendering its services to the Trust and, except as specifically provided herein, shall not be liable for error of judgment or mistake of law, for any loss arising out of any investment, or in any event whatsoever, provided that nothing herein shall be deemed to protect, or purport to protect, OFS against any liability to Saratoga or the Trust or to the security holders of the Trust to which it would otherwise be subject by reason of willful misfeasance, bad faith or negligence in the performance of its duties hereunder, or by reason of reckless disregard of its obligations and duties hereunder.
(b) The Trust and Saratoga shall indemnify and hold harmless FDIOFS, its officers, employees directors, employees, shareholders, affiliated persons (as such term is defined in the 1940 Act) and agents and any persons who control FDI (together collectively the "FDI and its employeesOFS Indemnified Parties" xxx xxxh individually an "OFS Indemnified Party") and hold each of them harmless from and against any and all losses, claims, damages or damages, expenses and liabilities, joint or actions several (including, but not limited to, any reasonable investigation, legal and other expenses incurred in respect thereofconnection with, to which FDI and its employees may become subject, including amounts any amount paid in settlement with the prior written consent of Xxxxxxof, insofar as any action, suit, proceeding or claim), which such losses, claims, damages OFS Indemnified Party or liabilities, OFS Indemnified Parties may be or actions in respect thereof, arise out become subject to or liable for by reason of or result from the failure of Xxxxxx to comply with the terms of this Agreement; Xxxxxx will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating (i) the Agreement, (ii) OFS's provision of services pursuant to the Agreement, (iii) any materially false or defending against inaccurate information or data provided by the Trust, Saratoga or one of its agents for use by OFS in providing its services hereunder or under the Distribution Agreement, or (iv) any information or data created by OFS that is materially changed by the Trust or Saratoga without OFS's approval; provided, however, that an OFS Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determined by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly and proximately by action or action. Xxxxxx shall not be liable to FDI for any omission of OFS and that such action taken or omitted by FDI in omission involved bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI of its obligations hereunder, or intentional misconduct by OFS.
(c) OFS shall indemnify and duties hereunder. The indemnities hold Saratoga and the Trust, their officers, directors, employees, shareholders, affiliated persons (as such term is defined in this Section shallthe 1940 Act) and agents (collectively the "Saratoga Indemnified Parxxxx" xxd each individually a " Saratoga Indemnified Party") harmless from and against any and all losses, upon the same terms claims, damages, expenses and conditionsliabilities, extend to joint or several (including, but not limited to, any reasonable investigation, legal and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI other expenses incurred in connection with, and any person controlling FDI within amount paid in settlement of, any action, suit, proceeding or claim), which such Saratoga Indemnified Party or Saratoga Indemnified Parties may be or become subject to or liable for by reason of or in connection with (i) the meaning of Section 15 of Agreement, (ii) under the Securities Act of 1933 1933, the 1934 Act, the 1940 Act, common law or otherwise, ("1933 Act"iii) any breach of any covenant or Xxxxxxx 00 xx xxx 0000 Xxx.
obligation of OFS contained in the Agreement, (xiv) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI by OFS to comply with any laws applicable to its performance of services under the terms Agreement, (v) any materially false or inaccurate information or data provided by OFS to Saratoga or the Trust pursuant to OFS's obligations hereunder or under the Distribution Agreement, (vi) any information or data provided by Saratoga or the Trust that is materially changed by OFS without Saratoga's or the Trust's approval or (vi) a final determination by a court of this Agreement; FDI will reimburse Xxxxxx for reasonable legal or other expenses reasonably incurred by Xxxxxx in connection with investigating or defending against any competent jurisdiction that such loss, claim, damage, expense or liability was caused directly or proximately by an action or omission of OFS involving bad faith, negligence, reckless disregard of its obligations hereunder, or intentional misconduct by OFS; provided, however, that a Saratoga Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determination by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly or proximately by an action or omission of OFS involving bad faith, negligence, reckless disregard of its obligations hereunder, or intentional misconduct by OFS; provided, however, that a Saratoga Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determined by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly and proximately by action or omission of Saratoga or the Trust and that such action or omission involved bad faith, negligence, reckless disregard of the obligations hereunder of Saratoga or the Trust, or intentional misconduct by Saratoga or the Trust.
(d) In order to provide for just and equitable contribution in circumstances in which the terms of Section 5(b) or Section 5(c) are applicable, but for any reason the indemnification provided for therein is held to be unavailable, Saratoga, the Trust and OFS shall contribute to the aggregate losses, claims, damages, expenses and liabilities (including, but not limited to, any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or claim) which any of the OFS Indemnified Parties or Saratoga Indemnified Parties (as defined above), respectively, may be subject to or liable for in proportion to the relative fault of Saratoga or the Trust, on the one hand, and OFS, on the other hand; provided, however, that in determining relative fault, there shall be considered the relative benefits received by each party from the transactions giving rise to the loss, claim, damage, expense or liability, the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances; provided, further, that in no event shall OFS, Saratoga or the Trust be required to contribute in the aggregate hereunder any amount in excess of the aggregate compensation received by OFS for its services during the immediately preceding 12 month period. FDI Saratoga, the Trust and OFS shall not have any other right of contribution in connection herewith.
(e) The applicable indemnified party, promptly and in any event within ten (10) days after receipt of notice of commencement of any action, suit, proceeding or claim in respect of which a claim for indemnification may be made by it, shall notify the applicable indemnifying party in writing of the commencement of such action, suit, proceeding or claim, enclosing a copy of all papers served. However, the omission to so notify the applicable indemnifying party of any such action, suit, proceeding or claim shall not relieve such indemnifying party from any liability that it may have under Section 5(b) or 5(c), as applicable, of this Agreement except to the extent that the ability of such indemnifying party to defend such action, suit, proceeding or claim is materially adversely affected.
(f) In case any such action, suit, proceeding or claim for which indemnity may be payable hereunder shall be brought against an OFS Indemnified Party or Saratoga Indemnified Party, as applicable (an "Indemnified Party"), and such Indemnified Party shall notify the applicable indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate in, and to the extent that such indemnifying party shall wish to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, subject to the further provisions of this paragraph. After written notice from such indemnifying party to such Indemnified Party of its election to so assume the defense thereof, such indemnifying party shall not be liable to Xxxxxx the applicable Indemnified Parties for any additional attorneys' fees or other expenses of litigation, other than reasonable costs of investigation subsequently incurred by such Indemnified Parties in connection with the defense thereof, unless (i) the employment of counsel by such Indemnified Parties has been authorized in writing by such indemnifying party, such authorization not to be unreasonably withheld or delayed; (ii) such Indemnified Parties shall have obtained a written opinion of counsel reasonably acceptable to such indemnifying party that there exists a conflict of interest between such Indemnified Parties and the relevant party in the conduct of the defense of such action taken or omitted that there are one or more defenses available to such Indemnified Parties that are unavailable to such indemnifying party (in which case such indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Parties); or (iii) such indemnifying party shall not in fact have employed counsel reasonably satisfactory to such Indemnified Parties to assume the defense of such action, in each of which cases the reasonable fees and expenses of counsel utilized by Xxxxxx such Indemnified Parties shall be at the expense of such indemnifying party, it being understood, however, that such indemnifying party shall not, in bad faith, connection with willful misfeasance any one such action or gross negligence, separate but substantially similar or with reckless disregard by Xxxxxx of its obligations and duties hereunder. The indemnities related actions in this Section shall, upon the same terms jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and conditionsexpenses of more than one separate firm of attorneys for an Indemnified Party, extend which firm shall be designated in writing by the Indemnified Party. Notwithstanding the foregoing, under the circumstances described in clause (ii) above, the applicable Indemnified Parties shall be entitled to and inure retain an additional law firm, in any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, provided such Indemnified Parties have obtained a written opinion of counsel reasonably acceptable to the benefit indemnifying party that a conflict of each interest exists that would preclude the use of a single law firm, in which case the directors and officers of Xxxxxx and any person controlling Xxxxxx within the meaning of Section 15 indemnifying party shall be liable for the 1933 Act or Section 20 reasonable fees and expenses of counsel designated by the 1934 ActIndemnified Parties in writing. All such fees and expenses which are at the expense of an indemnifying party hereunder shall be promptly paid by such indemnifying party.
(cg) The obligation Nothing in this Agreement shall be construed as limiting an Indemnified Party's rights to indemnify and provide contribution pursuant employ counsel at its own expense or to this Section 6 obtain indemnification for amounts reasonably paid to adverse claimants in satisfaction of any judgments or in settlement of any actions, suit, proceeding or claims, except that no party hereto shall survive be liable for any settlement of any action, suit, proceeding or claim effected without its written consent. None of the termination parties hereto shall settle or compromise any action, suit, proceeding or claim if such settlement or compromise provides for an admission of this Agreementliability on the part of an Indemnified Party without such Indemnified Party's written consent.
Appears in 1 contract
Samples: Administration Agreement (Saratoga Advantage Trust)
Standard of Care and Indemnification. (a) Xxxxxx will The Company, shall cause each Fund to: (i) indemnify and hold harmless FDI, its officers, employees and agents and any persons who control FDI (together "FDI and its employees") and hold each of them harmless from Dresdner RCM against any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI and its employees or Dresdner RCM may become subject, including amounts paid in settlement with the prior written consent of Xxxxxxthe Company, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx the Company, as the case may be, to comply with the terms of this AgreementAgreement with respect to any Fund; Xxxxxx will and (ii) reimburse FDI and its employees Dresdner RCM for reasonable legal or other expenses reasonably incurred by FDI and its employees or Dresdner RCM in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx A Fund shall not be liable to FDI or Dresdner RCM for any action taken or omitted by FDI or Dresdner RCM in bad faith, with willful misfeasance misfeasance, with gross negligence or gross negligence, or with in reckless disregard by FDI or Dresdner RCM of its obligations and duties hereunderduties. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and Dresdner RCM and any person controlling FDI or Dresdner RCM within the meaning of Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1933 1934 (the "1933 1934 Act") or Xxxxxxx 00 xx xxx 0000 Xxx).
(xb) FDI will will: (i) indemnify and hold harmless Xxxxxx, its officers, employees each Fund and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees") and hold each of them harmless from Dresdner RCM against any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees a Fund or Dresdner RCM may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; FDI will and (ii) reimburse Xxxxxx each Fund and Dresdner RCM for reasonable legal or other expenses reasonably incurred by Xxxxxx such Fund or Dresdner RCM in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx a Fund or Dresdner RCM for any action taken or omitted by Xxxxxx such Fund or Dresdner RCM in bad faith, with willful misfeasance misfeasance, with gross negligence or gross negligence, or with in reckless disregard by Xxxxxx such Fund or Dresdner RCM of its obligations and duties hereunderduties. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx each of the Company and Dresdner RCM and any person controlling Xxxxxx the Company or Dresdner RCM within the meaning of Section 15 for of the 1933 Act or Section 20 of the 1934 Act.
(c) Dresdner RCM will:(i) indemnify and hold harmless each Fund and FDI against any losses, claims, damages or liabilities, or actions in respect thereof, to which a Fund or FDI may become subject, including amounts paid in settlement with the prior written consent of Dresdner RCM, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from (A) the failure of Dresdner RCM to comply with the terms of this Agreement, or (B) any obligation of the Corporation or the Company, as the case may be, to FDI pursuant to Section 1.10 of the Distribution Agreement, to the extent such obligation arises out of or is based upon any untrue statement, alleged untrue statement, omission or alleged omission made in reliance upon information furnished by Dresdner RCM, its officers, directors or any person who controls Dresdner RCM within the meaning of Section 15 of the 1933 Act; and (ii) reimburse each Fund and FDI for reasonable legal or other expenses reasonably incurred by such Fund or FDI in connection with investigating or defending against any such loss, claim, damage, liability or action. Dresdner RCM shall not be liable to a Fund or FDI for any action taken or omitted by such Fund or FDI in bad faith, with willful misfeasance, with gross negligence or in reckless disregard by such Fund or FDI of its obligations and duties. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of each of the Company, FDI and any person controlling the Company or FDI within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act.
(i) Promptly after an indemnified party (or, if such indemnified party is not a natural person, a responsible officer of such indemnified party) receives notice or otherwise becomes aware of the commencement of any action or other assertion of any losses, claims, damages or liabilities by any third party, such indemnified party shall, if a claim in respect thereof is to be made pursuant to this Section 6, notify the indemnitor of the same in writing (such notice, a "claim notice"); but the omission so to notify the indemnitor will not relieve the indemnitor from any liability that it may have to such indemnified party otherwise than under this Section 6. The failure of an indemnified party to promptly send a claim notice shall not relieve the indemnitor from any liability except to the extent that the indemnitor shall have been prejudiced as a result of the failure or delay in giving such claim notice. In the event that the indemnified party notifies the indemnitor in writing of its waiver of any right to indemnification pursuant to this Section 6 in respect of any losses, claims, damages or liabilities or portion thereof, the provisions of clause (ii) of this Section 6(d) shall not apply.
(ii) Promptly following receipt of a claim notice, the indemnitor, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnitor may designate in contesting such losses, claims, damages or liabilities and shall pay the reasonable fees and disbursements of such counsel related to such contest. In any such contest, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (A) the indemnitor and the indemnified party shall have mutually agreed to the retention of such counsel or (B) the named parties to any such contest (including any impleaded parties) include both the indemnitor (or any other parties the indemnitor may designate) and the indemnified party and representation of all such parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. The indemnitor may, at its option, at any time upon written notice to the indemnified party, assume the responsibility for contesting any losses, claims, damages or liabilities and may designate counsel reasonably satisfactory to the indemnified party in connection therewith, provided that the counsel so designated would have no actual or potential conflict of interest in connection with such representation. Unless it shall assume the responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall not be liable for any settlement or compromise of such losses, claims, damages or liabilities or portion thereof, which settlement or compromise is effected without its written consent (which shall not be unreasonably withheld), but if settled or compromised with such consent or if there be a final judgment for the plaintiff asserting such losses, claims or liabilities, the indemnitor agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement, compromise or judgment. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, it shall be entitled to settle or compromise such losses, claims, damages or liabilities or portion thereof with the consent of the indemnified party (which shall not be unreasonably withheld) or, if such settlement or compromise provides for release of the indemnified party in connection with all matters relating to such losses, claims, damages or liabilities, or, with respect to the settlement or compromise of a portion of such losses, claims, damages or liabilities, all matters relating to such portion of such losses, claims, damages or liabilities, that have been asserted against the indemnified party by the other parties to such settlement or compromise, without the consent of the indemnified party. In the event that any expense paid by the indemnitor pursuant to this Section 6(d) is subsequently determined to not be required to be borne by the indemnitor, the indemnified party that received such payment shall promptly refund the amount so paid to the indemnitor. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall keep the indemnified party apprised, on a current basis, of matters concerning such contest, including without limitation (i) providing the indemnified party with reasonable notice of and opportunity to be present in person and/or by counsel at proceedings or discussions of settlement or compromise; (ii) providing the indemnified party with copies of and opportunity to comment on filings, papers or settlement agreements proposed to be filed or served by or on behalf of the indemnitor; and (iii) providing the indemnified party with copies of filings, papers and proposed settlement agreements received by the indemnitor from or on behalf of persons asserting such losses claims, damages or liabilities.
(e) If the indemnification provided for in Section 6(a), (b) or (c) shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 6(a), (b) or (c) in respect of any claim, demand, liability or expense, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount pa or payable by such indemnified party as a result of such claim, demand, liability or expense, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by such party, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of each party with respect to the matters that give rise to such claim, demand, liability or expense, or action in respect thereof, as well as any other relevant equitable considerations. The parties agree that it would not be just and equitable if contributions pursuant to this Section 6(e) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the claim, demand, liability or expense, or action in respect thereof, referred to above in this Section 6(e) shall be deemed to include, for purposes of this Section 6(e), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6(e), FDI shall not be required to contribute any amount in excess of (i) the total net underwriting discounts and commissions received by FDI with respect to the Shares sold under the Distribution Agreements and retained by FDI after payments to the Selling Broker Dealers; plus (ii) the amount of total "Excess Amount" compensation received by FDI with respect to Fee Letter Agreement as such term is defined in the Fee Letter Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 1 l(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(f) The obligation to indemnify and provide contribution pursuant to this Section 6 shall survive the termination of this Agreement.
(g) All notices to or consents by a Fund or the Company pursuant to this Section 6 shall be given to or made by the board of directors of the Company, as the case may be.
Appears in 1 contract
Standard of Care and Indemnification. (a) Xxxxxx Waterhouse will indemnify and hold harmless FDI, its officers, employees and agents and any persons who control FDI (together "FDI and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI and its employees may become subject, including amounts paid in settlement with the prior written consent of XxxxxxWaterhouse, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx Waterhouse to comply with the terms of this Agreement;
(b) FDI will indemnify and hold harmless Waterhouse, its officers, employees and agents and any persons who control Waterhouse (together "Waterhouse and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Waterhouse and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; Xxxxxx Waterhouse will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx Waterhouse shall not be liable to FDI for any action taken or omitted by FDI in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 Xxx.
Section 20 of the Securities Exchange Act of 1934 (x) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees1934 Act") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; ). FDI will reimburse Xxxxxx Waterhouse for reasonable legal or other expenses reasonably incurred by Xxxxxx Waterhouse in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx Waterhouse for any action taken or omitted by Xxxxxx Waterhouse in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by Xxxxxx Waterhouse of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx Waterhouse and any person controlling Xxxxxx Waterhouse within the meaning of Section 15 for the 1933 Act or Section 20 of the 1934 Act.
(ci) The obligation Promptly after an indemnified party (or, if such indemnified party is not a natural person, a responsible officer of such indemnified party) receives notice or otherwise becomes aware of the commencement of any action or other assertion of any losses, claims, damages or liabilities by any third party, such indemnified party shall, if a claim in respect thereof is to indemnify and provide contribution be made pursuant to this Section 6 shall survive 5, notify the termination indemnitor of the same in writing (such notice, a "claim notice"); but the omission so to notify the indemnitor will not relieve the indemnitor from any liability that it may have to such indemnified party otherwise than under this Section 5. In the event that the indemnified party notifies the indemnitor in writing of its waiver of any right to indemnification pursuant to this Section 5 in respect of any losses, claims, damages or liabilities or portion thereof, the provisions of clause (ii) of this AgreementSection 5(c) shall not apply.
(ii) Promptly following receipt of a claim notice, the indemnitor, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnitor may designate in contesting such losses, claims, damages or liabilities and shall pay the reasonable fees and disbursements of such counsel related to such contest. In any such contest, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (A) the indemnitor and the indemnified party shall have mutually agreed to the retention of such counsel or (B) the named parties to any such contest (including any impleaded parties) include both the indemnitor and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between
Appears in 1 contract
Samples: Sub Administration Agreement (Waterhouse Investors Family of Funds Inc)
Standard of Care and Indemnification. (a) Xxxxxx Waterhouse will indemnify and hold harmless FDI, its officers, employees and agents and any persons who control FDI (together "FDI and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which FDI and its employees may become subject, including amounts paid in settlement with the prior written consent of XxxxxxWaterhouse, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of Xxxxxx Waterhouse to comply with the terms of this Agreement;
(b) FDI will indemnify and hold harmless Waterhouse, its officers, employees and agents and any persons who control Waterhouse (together Waterhouse and its employees) and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Waterhouse and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; Xxxxxx Waterhouse will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating or defending against any such loss, claim, damage, liability or action. Xxxxxx Waterhouse shall not be liable to FDI for any action taken or omitted by FDI in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund Company and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 Xxx.
Section 20 of the Securities Exchange Act of 1934 (x) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees1934 Act") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of FDI to comply with the terms of this Agreement; ). FDI will reimburse Xxxxxx Waterhouse for reasonable legal or other expenses reasonably incurred by Xxxxxx Waterhouse in connection with investigating or defending against any such loss, claim, damage, liability or action. FDI shall not be liable to Xxxxxx Waterhouse for any action taken or omitted by Xxxxxx Waterhouse in bad faith, with willful misfeasance or gross negligence, or with reckless disregard by Xxxxxx Waterhouse of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the directors and officers of Xxxxxx Waterhouse and any person controlling Xxxxxx Waterhouse within the meaning of Section 15 for the 1933 Act or Section 20 of the 1934 Act.
(ci) Promptly after an indemnified party (or, if such indemnified party is not a natural person, a responsible officer of such indemnified party) receives notice or otherwise becomes aware of the commencement of any action or other assertion of any losses, claims, damages or liabilities by any third party, such indemnified party shall, if a claim in respect thereof is to be made pursuant to this Section 5, notify the indemnitor of the same in writing (such notice, a "claim notice"); but the omission so to notify the indemnitor will not relieve the indemnitor from any liability that it may have to such indemnified party otherwise than under this Section 5. In the event that the indemnified party notifies the indemnitor in writing of its waiver of any right to indemnification pursuant to this Section 5 in respect of any losses, claims, damages or liabilities or portion thereof, the provisions of clause (ii) of this Section 5(c) shall not apply.
(ii) Promptly following receipt of a claim notice, the indemnitor, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnitor may designate in contesting such losses, claims, damages or liabilities and shall pay the reasonable fees and disbursements of such counsel related to such contest. In any such contest, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (A) the indemnitor and the indemnified party shall have mutually agreed to the retention of such counsel or (B) the named parties to any such contest (including any impleaded parties) include both the indemnitor and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one firm for all such indemnified parties. The indemnitor may, at its option, at any time upon written notice to the indemnified party, assume the responsibility for contesting any losses, claims, damages or liabilities and may designate counsel satisfactory to the indemnitor in connection therewith provided that the counsel so designated would have no actual or potential conflict of interest in connection with such representation. Unless it shall assume the responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall not be liable for any settlement or compromise of such losses, claims, damages or liabilities or portion thereof which settlement or compromise is effected without its written consent, but if settled or compromised with such consent or if there be a final judgment for the plaintiff asserting such losses, claims or liabilities, the indemnitor agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement, compromise or judgment. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, it shall be entitled to settle or compromise such losses, claims, damages or liabilities or portion thereof with the consent of the indemnified party or, if such settlement or compromise provides for release of the indemnified party in connection with all matters relating to such losses, claims, damages or liabilities, or, with respect to the settlement or compromise of a portion of such losses, claims, damages or liabilities, all matters relating to such portion of such losses, claims, damages or liabilities, that have been asserted against the indemnified party by the other parties to such settlement or compromise, without the consent of the indemnified party. In the event that any expense paid by the indemnitor pursuant to this Section 6(c) is subsequently determined to not be required to be borne by the indemnitor, the indemnified party that received such payment shall promptly refund the amount so paid to the indemnitor. If the indemnitor assumes responsibility for contesting any losses, claims, damages or liabilities, the indemnitor shall keep the indemnified party apprised, on a current basis, of matters concerning such contest, including without limitation (i) providing the indemnified party with reasonable notice of and opportunity to be present in person and/or by counsel at proceedings or discussions of settlement or compromise; (ii) providing the indemnified party with copies of and opportunity to comment on filings, papers or settlement agreements proposed to be filed or served by or on behalf of the indemnitor; and (iii) providing the indemnified party with copies of filings, papers and proposed settlement agreements received by the indemnitor from or on behalf of persons asserting such losses, claims, damages or liabilities.
(d) The obligation to indemnify and provide contribution pursuant to this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Sub Administration Agreement (National Investors Cash Management Fund Inc)
Standard of Care and Indemnification. (a) Xxxxxx will FDI shall give the Trust the benefit of its best judgment and efforts in rendering its services to the Trust and, except as specifically provided herein, shall not be liable for error of judgment or mistake of law, for any loss arising out of any investment, or in any event whatsoever, provided that nothing herein shall be deemed to protect, or purport to protect, FDI against any liability to Saratoga or the Trust or to the security holders of the Trust to which it would otherwise be subject by reason of willful misfeasance, bad faith or negligence in the performance of its duties hereunder, or by reason of reckless disregard of its obligations and duties hereunder.
(b) The Trust and Saratoga shall indemnify and hold harmless FDI, its officers, employees directors, employees, shareholders, affiliated persons (as such term is defined in the 0000 Xxx) and agents and any persons who control FDI (together collectively the "FDI Indemnified Parties" and its employeeseach individually an "FDI Indemnified Party") and hold each of them harmless from and against any and all losses, claims, damages or damages, expenses and liabilities, joint or actions several (including, but not limited to, any reasonable investigation, legal and other expenses incurred in respect thereofconnection with, to which FDI and its employees may become subject, including amounts any amount paid in settlement with the prior written consent of Xxxxxxof, insofar as any action, suit, proceeding or claim), which such losses, claims, damages FDI Indemnified Party or liabilities, FDI Indemnified Parties may be or actions in respect thereof, arise out become subject to or liable for by reason of or result from the failure of Xxxxxx to comply with the terms of this Agreement; Xxxxxx will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating (i) the Agreement, (ii) FDI's provision of services pursuant to the Agreement, (iii) any materially false or defending against inaccurate information or data provided by the Trust, Saratoga or one of its agents for use by FDI in providing its services hereunder or under the Distribution Agreement, or (iv) any information or data created by FDI that is materially changed by the Trust or Saratoga without FDI's approval; provided, however, that an FDI Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determined by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly and proximately by action or action. Xxxxxx shall not be liable to omission of FDI for any and that such action taken or omitted by FDI in omission involved bad faith, with willful misfeasance or gross negligence, or with reckless disregard by FDI of its obligations hereunder, or intentional misconduct by FDI.
(c) FDI shall indemnify and duties hereunder. The indemnities hold Saratoga and the Trust, their officers, directors, employees, shareholders, affiliated persons (as such term is defined in this Section shallthe 0000 Xxx) and agents (collectively the "Saratoga Indemnified Parties" and each individually a " Saratoga Indemnified Party") harmless from and against any and all losses, upon the same terms claims, damages, expenses and conditionsliabilities, extend to joint or several (including, but not limited to, any reasonable investigation, legal and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI other expenses incurred in connection with, and any person controlling FDI within amount paid in settlement of, any action, suit, proceeding or claim), which such Saratoga Indemnified Party or Saratoga Indemnified Parties may be or become subject to or liable for by reason of or in connection with (i) the meaning of Section 15 of Agreement, (ii) under the Securities Act of 1933 1933, the 1934 Act, the 1940 Act, common law or otherwise, ("1933 Act"iii) any breach of any covenant or Xxxxxxx 00 xx xxx 0000 Xxx.
obligation of FDI contained in the Agreement, (xiv) FDI will indemnify and hold harmless Xxxxxx, its officers, employees and agents and any persons who control Xxxxxx (together "Xxxxxx and its employees") and hold each of them harmless from any losses, claims, damages or liabilities, or actions in respect thereof, to which Xxxxxx and its employees may become subject, including amounts paid in settlement with the prior written consent of FDI, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or result from the failure of by FDI to comply with any laws applicable to its performance of services under the terms Agreement, (v) any materially false or inaccurate information or data provided by FDI to Saratoga or the Trust pursuant to FDI's obligations hereunder or under the Distribution Agreement, (vi) any information or data provided by Saratoga or the Trust that is materially changed by FDI without Saratoga's or the Trust's approval or (vi) a final determination by a court of this Agreement; FDI will reimburse Xxxxxx for reasonable legal or other expenses reasonably incurred by Xxxxxx in connection with investigating or defending against any competent jurisdiction that such loss, claim, damage, expense or liability was caused directly or proximately by an action or omission of FDI involving bad faith, negligence, reckless disregard of its obligations hereunder, or intentional misconduct by FDI; provided, however, that a Saratoga Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that it shall have been finally determined by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly and proximately by action or omission of Saratoga or the Trust and that such action or omission involved bad faith, negligence, reckless disregard of the obligations hereunder of Saratoga or the Trust, or intentional misconduct by Saratoga or the Trust.
(d) In order to provide for just and equitable contribution in circumstances in which the terms of Section 5(b) or Section 5(c) are applicable, but for any reason the indemnification provided for therein is held to be unavailable, Saratoga, the Trust and FDI shall contribute to the aggregate losses, claims, damages, expenses and liabilities (including, but not limited to, any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or claim) which any of the FDI Indemnified Parties or Saratoga Indemnified Parties (as defined above), respectively, may be subject to or liable for in proportion to the relative fault of Saratoga or the Trust, on the one hand, and FDI, on the other hand; provided, however, that in determining relative fault, there shall be considered the relative benefits received by each party from the transactions giving rise to the loss, claim, damage, expense or liability, the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances; provided, further, that in no event shall FDI, Saratoga or the Trust be required to contribute in the aggregate hereunder any amount in excess of the aggregate compensation received by FDI for its services during the immediately preceding 12 month period. Saratoga, the Trust and FDI shall not have any other right of contribution in connection herewith.
(e) The applicable indemnified party, promptly and in any event within ten (10) days after receipt of notice of commencement of any action, suit, proceeding or claim in respect of which a claim for indemnification may be made by it, shall notify the applicable indemnifying party in writing of the commencement of such action, suit, proceeding or claim, enclosing a copy of all papers served. However, the omission to so notify the applicable indemnifying party of any such action, suit, proceeding or claim shall not relieve such indemnifying party from any liability that it may have under Section 5(b) or 5(c), as applicable, of this Agreement except to the extent that the ability of such indemnifying party to defend such action, suit, proceeding or claim is materially adversely affected.
(f) In case any such action, suit, proceeding or claim for which indemnity may be payable hereunder shall be brought against an FDI Indemnified Party or Saratoga Indemnified Party, as applicable (an "Indemnified Party"), and such Indemnified Party shall notify the applicable indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate in, and to the extent that such indemnifying party shall wish to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, subject to the further provisions of this paragraph. After written notice from such indemnifying party to such Indemnified Party of its election to so assume the defense thereof, such indemnifying party shall not be liable to Xxxxxx the applicable Indemnified Parties for any additional attorneys' fees or other expenses of litigation, other than reasonable costs of investigation subsequently incurred by such Indemnified Parties in connection with the defense thereof, unless (i) the employment of counsel by such Indemnified Parties has been authorized in writing by such indemnifying party, such authorization not to be unreasonably withheld or delayed; (ii) such Indemnified Parties shall have obtained a written opinion of counsel reasonably acceptable to such indemnifying party that there exists a conflict of interest between such Indemnified Parties and the relevant party in the conduct of the defense of such action taken or omitted that there are one or more defenses available to such Indemnified Parties that are unavailable to such indemnifying party (in which case such indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Parties); or (iii) such indemnifying party shall not in fact have employed counsel reasonably satisfactory to such Indemnified Parties to assume the defense of such action, in each of which cases the reasonable fees and expenses of counsel utilized by Xxxxxx such Indemnified Parties shall be at the expense of such indemnifying party, it being understood, however, that such indemnifying party shall not, in bad faith, connection with willful misfeasance any one such action or gross negligence, separate but substantially similar or with reckless disregard by Xxxxxx of its obligations and duties hereunder. The indemnities related actions in this Section shall, upon the same terms jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and conditionsexpenses of more than one separate firm of attorneys for an Indemnified Party, extend which firm shall be designated in writing by the Indemnified Party. Notwithstanding the foregoing, under the circumstances described in clause (ii) above, the applicable Indemnified Parties shall be entitled to and inure retain an additional law firm, in any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, provided such Indemnified Parties have obtained a written opinion of counsel reasonably acceptable to the benefit indemnifying party that a conflict of each interest exists that would preclude the use of a single law firm, in which case the directors and officers of Xxxxxx and any person controlling Xxxxxx within the meaning of Section 15 indemnifying party shall be liable for the 1933 Act or Section 20 reasonable fees and expenses of counsel designated by the 1934 ActIndemnified Parties in writing. All such fees and expenses which are at the expense of an indemnifying party hereunder shall be promptly paid by such indemnifying party.
(cg) The obligation Nothing in this Agreement shall be construed as limiting an Indemnified Party's rights to indemnify and provide contribution pursuant employ counsel at its own expense or to this Section 6 obtain indemnification for amounts reasonably paid to adverse claimants in satisfaction of any judgments or in settlement of any actions, suit, proceeding or claims, except that no party hereto shall survive be liable for any settlement of any action, suit, proceeding or claim effected without its written consent. None of the termination parties hereto shall settle or compromise any action, suit, proceeding or claim if such settlement or compromise provides for an admission of this Agreementliability on the part of an Indemnified Party without such Indemnified Party's written consent.
Appears in 1 contract
Samples: Administration Agreement (Saratoga Advantage Trust)
Standard of Care and Indemnification. (a) Xxxxxx will Nomura shall indemnify and hold harmless FDI, its officers, employees directors, employees, shareholders, affiliated persons (as such term is defined in the 0000 Xxx) and agents and any persons who control FDI (together collectively the "FDI Indemnified Parties" and its employeeseach individually an "FDI Indemnified Party") and hold each of them harmless from and against any and all losses, claims, damages or damages, expenses and liabilities, joint or actions several (including, but not limited to, any reasonable investigation, legal and other expenses incurred in respect thereofconnection with, to which FDI and its employees may become subject, including amounts any amount paid in settlement with the prior written consent of Xxxxxxof, insofar as any action, suit, proceeding or claim), which such losses, claims, damages FDI Indemnified Party or liabilities, FDI Indemnified Parties may be or actions in respect thereof, arise out become subject to or liable for by reason of or result from the failure of Xxxxxx to comply with the terms of this Agreement; Xxxxxx will reimburse FDI and its employees for reasonable legal or other expenses reasonably incurred by FDI and its employees in connection with investigating this Agreement, FDI's provision of services pursuant to this Agreement, or defending against any other matter, event or transaction in any way relating to or connected with this Agreement or the subject matter hereof; provided, however, that an FDI Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that such loss, claim, damage, expense or liability was caused directly and proximately by action or action. Xxxxxx shall not be liable to omission of FDI for any and that such action taken or omitted by FDI in omission involved bad faith, with willful misfeasance gross negligence or gross negligence, or with reckless disregard intentional misconduct by FDI of its obligations and duties hereunder. The indemnities in this Section shall, upon the same terms and conditions, extend to and inure to the benefit of each of the employees of FDI that serve as officers or directors of the Fund and to each of the directors and officers of FDI and any person controlling FDI within the meaning of Section 15 of the Securities Act of 1933 ("1933 Act") or Xxxxxxx 00 xx xxx 0000 XxxFDI.
(xb) FDI will shall indemnify and hold harmless XxxxxxNomura, its officers, employees directors, employees, shareholders, affiliated persons (as such term is defined in 0000 Xxx) and agents (collectively the "Nomura Indemnified Parties" and any persons who control Xxxxxx (together each individually a "Xxxxxx and its employeesNomura Indemnified Party") and hold each of them harmless from and against any and all losses, claims, damages or damages, expenses and liabilities, joint or actions several (including, but not limited to, any reasonable investigation, legal and other expenses incurred in respect thereofconnection with, to which Xxxxxx and its employees may become subject, including amounts any amount paid in settlement with the prior written consent of FDIof, insofar as any action, suit, proceeding or claim), which such losses, claims, damages Nomura Indemnified Party or liabilities, Nomura Indemnified Parties may be or actions in respect thereof, arise out of become subject to or result from the failure of FDI to comply with the terms incur by reason of this Agreement; FDI will reimburse Xxxxxx for reasonable legal Agreement or other expenses reasonably incurred by Xxxxxx in connection with investigating under the 1933 Act, the 1934 Act, common law or defending against any otherwise, but only to the extent that such loss, claim, damage, expense or liability incurred by a Nomura Indemnified Party shall arise out of or be based on (i) any breach of any covenant or obligation of FDI contained in this Agreement, (ii) any failure by FDI to comply with any laws applicable with its performance of services under this Agreement or (iii) a final determination by a court of competent jurisdiction that such loss, claim, damage, expense or liability was caused directly or proximately by an action or omission of FDI involving bad faith, gross negligence or intentional misconduct by FDI; provided that a Nomura Indemnified Party shall not be entitled to indemnification hereunder to the extent, but only to the extent, that such loss, claim, damage, expense or liability was caused directly and proximately by action or omission of Nomura and that such action or omission involved bad faith, gross negligence or intentional misconduct by Nomura.
(c) In order to provide for just and equitable contribution in circumstances in which the terms of Section 7(a) or 7(b) are applicable, but for any reason the indemnification provided for therein is held to be unavailable, Nomura and FDI shall contribute to the aggregate losses, claims, damages, expenses and liabilities (including, but not limited to, any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or claim) which any of the FDI Indemnified Parties or Nomura Indemnified Parties (as defined above), respectively, may be subject to or liable for in proportion to the relative fault of Nomura, on the one hand, and FDI, on the other hand; provided, however, that in determining relative fault, there shall be considered the relative benefits received by each party from the transactions giving rise to the loss, claim, damage, expense or liability, the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances; provided, further, that in no event shall FDI be required to contribute in the aggregate hereunder any amount in excess of the aggregate compensation received by it for its services during the immediately preceding 12-month period. Neither Nomura nor FDI shall have any other right of contribution in connection herewith.
(d) The applicable indemnified party, promptly and in any event within ten (10) days after receipt of notice of commencement of any action, suit, proceeding or claim in respect of which a claim for indemnification may be made by it, shall notify the applicable indemnifying party in writing of the commencement of such action, suit, proceeding or claim, enclosing a copy of all papers served. However, the omission to so notify the applicable indemnifying party of any such action, suit, proceeding or claim shall not relieve such indemnifying party from any liability that it may have under Section 7(a) or (b), as applicable, of this Agreement except to the extent that the ability of such indemnifying party to defend such action, suit, proceeding or claim is materially adversely affected.
(e) In case any such action, suit, proceeding or claim for which indemnity may be payable hereunder shall be brought against an FDI Indemnified Party or Nomura Indemnified Party, as applicable (an "Indemnified Party"), and such Indemnified Party shall notify the applicable indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate in, and to the extent that such indemnifying party shall wish to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, subject to the further provisions of this paragraph. After written notice from such indemnifying party to such Indemnified Party of its election to so assume the defense thereof, such indemnifying party shall not be liable to Xxxxxx the applicable Indemnified Parties for any additional attorneys' fees or other expenses of litigation, other than reasonable costs of investigation subsequently incurred by such Indemnified Parties in connection with the defense thereof, unless (i) the employment of counsel by such Indemnified Parties has been authorized in writing by such indemnifying party, such authorization not to be unreasonably withheld or delayed; (ii) such Indemnified Parties shall have obtained a written opinion of counsel reasonably acceptable to such indemnifying party that there exists a conflict of interest between such Indemnified Parties and the relevant party in the conduct of the defense of such action taken or omitted that there are one or more defenses available to such Indemnified Parties that are unavailable to such indemnifying party (in which case such indemnifying party shall not have the right to direct the defense of such action on behalf of such Indemnified Parties); or (iii) such indemnifying party shall not in fact have employed counsel reasonably satisfactory to such Indemnified Parties to assume the defense of such action, in each of which case the reasonable fees and expenses of counsel utilized by Xxxxxx such Indemnified Parties shall be at the expense of such indemnifying party, it being understood, however, that such indemnifying party shall not, in bad faith, connection with willful misfeasance any one such action or gross negligence, separate but substantially similar or with reckless disregard by Xxxxxx of its obligations and duties hereunder. The indemnities related actions in this Section shall, upon the same terms jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and conditionsexpenses of more than one separate firm of attorneys for an Indemnified Party, extend which firm shall be designated in writing by the Indemnified Party. Notwithstanding the foregoing, under the circumstances described in clause (ii) above, the applicable Indemnified Parties shall be entitled to and inure retain an additional law firm, in any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, provided such Indemnified Parties have obtained a written opinion of counsel reasonably acceptable to the benefit indemnifying party that a conflict of each interest exists that would preclude the use of a single law firm, in which case the directors and officers of Xxxxxx and any person controlling Xxxxxx within the meaning of Section 15 indemnifying party shall be liable for the 1933 Act or Section 20 reasonable fees and expenses of counsel designated by the 1934 ActIndemnified Parties writing. All such fees and expenses which are at the expense of an indemnifying party hereunder shall be promptly paid by such indemnifying party.
(cf) The obligation Nothing in this Agreement shall be construed as limiting an Indemnified Party's rights to indemnify and provide contribution pursuant employ counsel at its own expense or to this Section 6 obtain indemnification for amounts reasonably paid to adverse claimants in satisfaction of any judgments or in settlement of any actions, suit, proceeding or claims, except that no party hereto shall survive be liable for any settlement of any action, suit, proceeding or claim effected without its written consent. None of the termination parties hereto shall settle or compromise any action, suit, proceeding or claim if such settlement or compromise provides for an admission of this Agreementliability on the part of an Indemnified Party without such Indemnified Party's written consent.
Appears in 1 contract
