Common use of Failure to Make Timely Determination Clause in Contracts

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 6, if the person or persons empowered or selected to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such determination within thirty (30) days after receipt by the Trust of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Declaration of Trust or the Trust’s by-laws, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied, or (iv) a subsequent Final Adjudication or, in a matter disposed of without a Final Adjudication, determination pursuant to subsection (h) of Section 6, that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), or (iii) of this Section 6(c) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the Trust of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State of Delaware or any other court of competent jurisdiction.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 6, if the person or persons empowered or selected to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such determination within thirty (30) days after receipt by the Trust of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s 's statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Trust's Agreement and Declaration of Trust or the Trust’s byBy-lawsLaws, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied, or (iv) a subsequent Final Adjudication or, in a matter disposed of without a Final Adjudication, determination pursuant to subsection (h) of Section 6, that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), or (iii) of this Section 6(c) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the Trust of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State of Delaware or any other court of competent jurisdiction.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 65, if the person or persons empowered or selected under Section 1 or Section 2 to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such the determination within thirty (30) days after receipt by the Trust of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an adjudication by an appropriate court of the State of Delaware or any other court of competent jurisdiction finding an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Declaration of Trust or the Trust’s by-lawslaw, (iii) a requirement under the Investment Company Act of 1940, as amended, 1940 for insurance or security, which security that has not been satisfied, or (iv) a subsequent Final Adjudication adjudication or, in a matter disposed of without a Final Adjudicationadjudication, determination pursuant to subsection (hb) of Section 6, 1 that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such the thirty day period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), (iii), or (iiiiv) of this Section 6(csection 5(c) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the Trust of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(csection 5(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State of Delaware or any other court of competent jurisdiction.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 6, if the person or persons empowered or selected to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such determination within thirty (30) days after receipt by the Trust of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Declaration of Trust or the Trust’s by-laws, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied, or (iv) a subsequent Final Adjudication or, in a matter disposed of without a Final Adjudication, determination pursuant to subsection (hi) of Section 6, that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), or (iii) of this Section 6(c6(d) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the Trust of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(c6(d)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State Commonwealth of Delaware Massachusetts or any other court of competent jurisdiction.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 65, if the person or persons empowered or selected under Section 1 or Section 2 to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such determination within thirty (30) days after receipt by the relevant Trust of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an adjudication by an appropriate court of The Commonwealth of Massachusetts or any other court of competent jurisdiction finding an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Declaration of Trust or the Trust’s by-lawslaw, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which security that has not been satisfied, or (iv) a subsequent Final Adjudication adjudication or, in a matter disposed of without a Final Adjudicationadjudication, determination pursuant to subsection (hb) of Section 6, 1 that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), (iii), or (iiiiv) of this Section 6(csection 5(c) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the relevant Trust of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(csection 5(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State The Commonwealth of Delaware Massachusetts or any other court of competent jurisdiction.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 6, if the person or persons empowered or selected to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such determination within thirty (30) days after receipt by the Trust Fund of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Declaration of Trust Organizational Documents or the TrustFund’s by-laws, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied, or (iv) a subsequent Final Adjudication or, in a matter disposed of without a Final Adjudication, determination pursuant to subsection (h) of Section 6, that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), or (iii) of this Section 6(c) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the Trust Fund of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State Commonwealth of Delaware Massachusetts or any other court of competent jurisdiction.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 6, if If the person or persons or entity empowered or selected under this Section 7 to determine whether the Trustee Indemnitee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such a determination within thirty sixty (3060) days after receipt by the Trust Company of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, made and the Trustee Indemnitee shall be entitled to such indemnification or advancement, absent (i) an intentional a misstatement by the Trustee Indemnitee of a material fact, or an intentional omission of a material fact necessary to make the TrusteeIndemnitee’s statement not materially misleading, in connection with the request for indemnification indemnification, or advancement of Expenses, (ii) a prohibition the Company’s not being liable for the payment of such indemnification or advancements under applicable law or the Declaration of Trust or the Trust’s by-laws, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied, or (iv) a subsequent Final Adjudication or, in a matter disposed of without a Final Adjudication, determination pursuant to subsection one of clauses (hb)(i) of through (b)(iii) in Section 6, that the Trustee is not entitled to indemnification under this Agreement1; provided, however, that such sixty (60) day period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person person, persons or persons entity making the such determination with respect to entitlement to indemnification in good faith require requires such additional time to obtain or evaluate documentation or and/or information relating thereto. Any assertion under clauses (i); and provided further, (ii), or (iiithat the foregoing provisions of this Section 7(e) shall not apply if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(b)(iv) of this Section 6(c) shall be made in writing, specify the basis for the assertion, Agreement and be delivered to the Trustee if within thirty twenty (3020) days after receipt by the Trust Company of the request for indemnification such determination, the Board of Directors, a committee thereof, or advancement the directors who are not party to the subject Proceeding, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual or special meeting of Expenses stockholders to be held within ninety (or any extension of 90) days after such period provided under this Section 6(c)). The Trustee shall be entitled to adjudication of receipt and such assertion in an appropriate court of the State of Delaware or any other court of competent jurisdictiondetermination is made thereat.

Failure to Make Timely Determination. Subject to paragraph (a) of this Section 6, if the person or persons empowered or selected to determine whether the Trustee is entitled to indemnification or advancement of Expenses (other than determinations that are made or to be made by a court) shall not have made such determination within thirty (30) days after receipt by the Trust of the request therefor, the requisite determination of entitlement to indemnification or advancement of Expenses shall be deemed to have been made, and the Trustee shall be entitled to such indemnification or advancement, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancement of Expenses, (ii) a prohibition of such indemnification or advancements under applicable law or the Trust’s Agreement and Declaration of Trust or the Trust’s byBy-lawsLaws, (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied, or (iv) a subsequent Final Adjudication or, in a matter disposed of without a Final Adjudication, determination pursuant to subsection (h) of Section 6, that the Trustee is not entitled to indemnification under this Agreement; provided, however, that such period may be extended for a reasonable period of time, not to exceed an additional thirty (30) days, if the person or persons making the determination in good faith require such additional time to obtain or evaluate documentation or information relating thereto. Any assertion under clauses (i), (ii), or (iii) of this Section 6(c) shall be made in writing, specify the basis for the assertion, and be delivered to the Trustee within thirty (30) days after receipt by the Trust of the request for indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State of Delaware or any other court of competent jurisdiction.