Common use of Indemnification of the Distributor Clause in Contracts

Indemnification of the Distributor. The Company agrees to indemnify, defend and hold harmless, the Distributor, each of its directors, officers, principals, representatives, employees and each person, if any, who controls the Distributor within the meaning of Section 15 of the 1933 Act (collectively, the “Distributor Indemnified Parties”) on an as-incurred basis from and against any and all losses, claims, damages or liabilities whatsoever (including any investigation, legal or other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) (collectively, “Losses”) to which the Distributor Indemnified Parties become subject, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) any breach of any representation, warranty or covenant made by the Company in this Agreement; provided, however, that the Company shall not be liable in any such case to the extent that any Loss arises out of or is based upon (A) an untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus about the Distributor in reliance upon and in conformity with written information furnished to the Company by the Distributor expressly for use therein; (B) the Distributor’s own willful misfeasance, bad faith or gross negligence in the performance of its duties or the Distributor’s reckless disregard of its obligations and duties under this Agreement or arising out of the failure of the Distributor to deliver a current Prospectus; or (C) the Distributor’s material breach of this Agreement.

Indemnification of the Distributor. The Company Fund agrees to indemnify, defend indemnify and hold harmless, harmless the Distributor, Distributor and each of its present or former directors, officers, principalsemployees, representatives, employees representatives and each person, if any, who controls or previously controlled the Distributor within the meaning of Section 15 of the 1933 Act (collectively, the “Distributor Indemnified Parties”) on an as-incurred basis from and against any and all losses, claimsliabilities, damages damages, claims or liabilities whatsoever expenses (including the reasonable costs of investigating or defending any investigationalleged loss, liability, damage, claim or expense and reasonable legal or other expenses counsel fees incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) (collectively, “Losses”therewith) to which the Distributor Indemnified Parties or any such person may become subjectsubject under the 1933 Act, under any other statute, at common law, or otherwise, arising out of or based upon the acquisition of any Shares by any person which (i) may be based upon any wrongful act by the Fund or any of the Fund's Directors, officers, employees or representatives (including, without limiting the foregoing, any wrongful or unauthorized sales activities of the Fund, as defined under the By-Laws of the NASD, including any failure to conform with any requirement of any state or federal law relating to the sale of Shares), or (ii) may be based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement, Prospectus, shareholder report or other information covering Shares filed or made public by the Fund or any Prospectus amendment thereof or supplement thereto, or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) any breach of any representation, warranty or covenant made by the Company in this Agreement; provided, however, that the Company shall not be liable in any unless such case to the extent that any Loss arises out of or is based upon (A) an untrue statement or alleged untrue statement or omission or alleged omission was made in the Prospectus about the Distributor in reliance upon and in conformity with written information furnished to the Company Fund by the Distributor expressly for use therein; (B) Distributor. The Fund shall also indemnify and hold harmless the Distributor’s own , its officers and directors and control persons from any liability to the Fund or to the holders of Shares by reason of the Fund's willful misfeasance, bad faith or gross negligence in the performance of its duties or the Distributor’s by reason of its reckless disregard of its obligations and duties under this Agreement. In no case (i) is the Fund's indemnity in favor of the Distributor, or any person indemnified to be deemed to protect the Distributor or such indemnified person against any liability to which the Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of such person's duties or by reason of reckless disregard of such person's obligations and duties under this Agreement or arising out (ii) is the Fund to be liable under their indemnity agreement contained in this Paragraph with respect to any claim made against Distributor, or person indemnified unless the Distributor, or such person, as the case may be, shall have notified the Fund in writing of the failure claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Distributor or upon such person (or after the Distributor or such person shall have received notice of such service on any designated agent). However, failure to deliver a current Prospectus; notify the Fund of any such claim shall not relieve the Fund from any liability which the Fund may have to the Distributor or (C) any person against whom such action is brought otherwise than on account of the Fund's indemnity agreement contained in this Paragraph. The Fund shall be entitled to participate, at its own expense, in the defense, or, if the Fund so elects, to assume the defense of any suit brought to enforce any such claim, but if the Fund elects to assume the defense, such defense shall be conducted by legal counsel chosen by the Fund and satisfactory to the Distributor and to the persons indemnified as defendant or defendants, in the suit. In the event that the Fund elects to assume the defense of any such suit and retain such legal counsel, the Distributor’s material breach , the persons indemnified as defendant or defendants in the suit, shall bear the fees and expenses of this Agreementany additional legal counsel retained by them. If the Fund does not elect to assume the defense of any such suit , the Fund will reimburse the Distributor and the persons indemnified as defendant or defendants in such suit for the reasonable fees and expenses of any legal counsel retained by them and will provide advances for payment of the reasonable expenses incurred by them in connection with the matters as to which it or they are seeking indemnification in the matter and to the fullest extent permissible by law. The Fund agrees to promptly notify the Distributor of the commencement of any litigation or proceedings against it or any of its Directors, officers, employees or representatives in connection with the issue or sale of any Shares.