Common use of Certain Limits on Indemnification Clause in Contracts

Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to: (a) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the Company; (b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in Indemnitee’s Corporate Status; (c) indemnification with respect to any proceeding for an accounting of profits arising from the purchase and sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act; or (d) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the Company’s Agreement and Declaration of Trust or Bylaws, a resolution of the shareholders entitled to vote generally in the election of trustees or of the Board of Trustees or an agreement approved by the Board of Trustees to which the Company is a party expressly provide otherwise.

Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to: (a) indemnification hereunder if the Proceeding was one by or in the right of the Company Trust and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the CompanyTrust; (b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable on the basis that Indemnitee actually received an improper personal benefit was improperly received or profit in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in Indemnitee’s Corporate Status; (c) indemnification with respect to any proceeding for an accounting of profits arising from the purchase and sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act; or (dc) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the CompanyTrust’s Agreement and Declaration of Trust or Bylaws, a resolution of the shareholders entitled to vote generally in the election of trustees or of the Board of Trustees or an agreement approved by the Board of Trustees to which the Company Trust is a party expressly provide otherwise.

Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to: (a) indemnification hereunder if the Proceeding was one by or in the right of the Company Trust and Indemnitee is adjudged, in a final adjudication of the such Proceeding not subject to further appeal, to be liable to the CompanyTrust with respect to such Proceeding; (b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the such Proceeding not subject to further appeal, to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in Indemnitee’s Corporate Status; (c) indemnification with respect to any proceeding for an accounting of profits arising from the purchase and sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act; or (dc) indemnification or advance of Expenses hereunder if the Proceeding was brought by IndemniteeIndemnitee against the Trust, unless: (i) the Proceeding was brought to enforce indemnification under Section 12-403 of the Statutory Trust Act, (ii) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (iiiii) the CompanyTrust Agreement or the Trust’s Agreement and Declaration of Trust or bylaws, if any, as may be amended from time to time (the “Bylaws”), a resolution of or other action by the shareholders entitled to vote generally in the election of trustees Beneficiaries or of the Board of Trustees or an agreement approved by the Board of Trustees to which the Company Trust is a party expressly provide otherwise.

Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to: (a) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the Company; (b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable on the basis that personal benefit in money, property or services was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in Indemnitee’s Corporate Status; (c) indemnification with respect to any proceeding for an accounting of profits arising from the purchase and sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act; or (d) indemnification or advance of Expenses hereunder if the Proceeding was brought by IndemniteeIndemnitee against the Company, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only (A) to the extent in accordance with and as authorized by Section 12 of this AgreementAgreement and (B) if a court of competent jurisdiction has not determined that any of the material assertions made by Indemnitee in such Proceeding were not made in good faith or were frivolous, or (ii) the Company’s Agreement and Declaration of Trust charter or Bylaws, a resolution of the shareholders stockholders entitled to vote generally in the election of trustees directors or of the Board of Trustees Directors or an agreement approved by the Board of Trustees Directors to which the Company is a party expressly provide otherwise; (d) indemnification or advance of Expenses hereunder for amounts which have been paid to or on behalf of the Indemnitee under an insurance policy, or under a valid and enforceable indemnity clause, bylaw or other agreement; or (e) indemnification or advance of Expenses hereunder to the extent it shall be determined by final judgment by a court having jurisdiction on the matter that such indemnification is not lawful.