Common use of incurred Clause in Contracts

incurred. Any such separate firm for the Participants and such control Persons of Participants shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants and any such separate firm for the Issuers, their directors, their officers and such control Persons of the Issuers shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreement, the Indemnifying Person agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such indemnified Person, in form and substance satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of an Indemnified Person.

incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel reasonably incurred by such Indemnified Person shall be at the expense of such Indemnified Person unless: (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded based on the advice of counsel that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the documented fees and expenses of more than one separate firm (in addition to any one local counsel in each relevant jurisdiction) for all Indemnified Persons, and that all documented fees and expenses reasonably incurred by such Indemnified Person shall be reimbursed as they are incurred. Any such separate firm for any Holder and the Participants directors, officers and any control persons of any such control Persons of Participants Holders shall be designated in writing by Participants the Holders who sold a majority in interest aggregate principal amount of Registrable Notes sold the Securities or New Securities by all such Participants Holders and any such separate firm for the IssuersParent, the Issuer, their directors, their respective directors and officers and such any control Persons persons of the Issuers Parent and the Issuer shall be designated in writing by the CompanyIssuer. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (Ax) includes an unconditional release of such indemnified Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (By) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an any Indemnified Person.

incurred. Any such separate firm for the Participants any Underwriter, its affiliates, directors and officers and any control persons of such control Persons of Participants Underwriter shall be designated in writing by Participants X.X. Xxxxxx Securities Inc., any such separate firm for the Company, its directors, its officers who sold a majority signed the Registration Statement and any control persons of the Company shall be designated in interest of Registrable Notes sold writing by all such Participants the Company and any such separate firm for the Issuers, their directors, their officers and such control Persons of the Issuers Selling Stockholders shall be designated in writing by the CompanyAttorney-in-Fact. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such the Indemnifying Person of the aforesaid such request and (ii) such the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (Ax) includes an unconditional release of such indemnified Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (By) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an any Indemnified Person.

incurred. Any Notwithstanding the foregoing, any indemnified party shall have the right to retain its own counsel in any such action, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party shall have failed to retain counsel for the indemnified person as aforesaid or shall have failed to defend such action in accordance with preceding paragraph or (ii) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel. It is understood that the indemnifying party shall not, in connection with any action or related actions in the same jurisdiction, be liable for the fees and disbursements of more than one separate firm qualified in such jurisdiction to act as counsel for the Participants and such control Persons of Participants shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants and any such separate firm for the Issuers, their directors, their officers and such control Persons of the Issuers shall be designated in writing by the Companyindemnified party. The Indemnifying Person indemnifying party shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person indemnifying party agrees to indemnify any Indemnified Person the indemnified party from and against any loss or liability by reason of such settlement or judgment. If the indemnification provided for in the first two paragraphs of this Section 5 is unavailable or insufficient to hold harmless an indemnified party under such paragraphs in respect of any losses, claims, damages or liabilities or actions in respect thereof referred to therein, then each indemnifying party shall in lieu of indemnifying such indemnified party contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or actions in such proportion as appropriate to reflect the relative fault of the Company, on the one hand, and the sellers of such Registerable Stock, on the other, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or actions as well as any other relevant equitable considerations, including the failure to give any notice under the third paragraph of this Section 5. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by the Company, on the one hand, or the sellers of such Registerable Stock, on the other, and to the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each of you agree that it would not be just and equitable if contributions pursuant to this paragraph were determined by pro rata allocation (even if all of the sellers of such Registerable Stock were treated as one entity for such purpose) or by any other method of allocation which did not take account of the equitable considerations referred to above in this paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or action in respect thereof, referred to above in this paragraph, shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by counsel as contemplated by the third sentence provisions of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date sellers of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person Registerable Stock shall not be liable for required to contribute any settlement effected without its consent pursuant amount in excess of the amount, if any, by which the total price at which the Common Stock sold by each of them was offered to this sentence if the Indemnifying Person is contesting, in good faith, public exceeds the request for reimbursementamount of any damages which they would have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission. No Indemnifying Person shall, without person guilty of fraudulent misrepresentations (within the prior written consent meaning of Section 11(f) of the Indemnified PersonSecurities Act), effect shall be entitled to contribution from any settlement of any pending or threatened proceeding in respect of which any Indemnified Person person who is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release not guilty of such indemnified Person, in form and substance satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of an Indemnified Personfraudulent misrepresentation.

incurred. Any If any action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party may participate at its own expense in the defense of any such separate firm for action. The indemnifying party may elect to assume the Participants defense thereof, with counsel reasonably satisfactory to such indemnified party by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such control Persons of Participants counsel shall be designated at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party 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, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in writing addition to those available to the indemnifying party, or (iv) the indemnifying party shall have failed to designate within a reasonable period of time counsel reasonably satisfactory to the indemnified party (in which case the fees and expenses shall be paid as incurred by Participants who sold a majority the indemnifying party). In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in interest addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of Registrable Notes sold by the same general allegations or circumstances, and all such Participants fees and any such separate firm for the Issuers, their directors, their officers and such control Persons of the Issuers expenses shall be designated in writing by the Companyreimbursed as they are incurred. The Indemnifying Person An indemnifying party shall not be liable for any settlement of any proceeding effected without its prior written consent, but which consent shall not be unreasonably withheld. However, if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnifying party shall indemnify any Indemnified Person the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person indemnified party shall have requested an Indemnifying Person indemnifying party to reimburse the Indemnified Person indemnified party for reasonable fees and expenses actually incurred by of counsel as contemplated by for which the third sentence of indemnifying party is obligated under this paragraphsubsection, the Indemnifying Person indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such Indemnifying Person indemnifying party of the aforesaid request request, and (ii) such Indemnifying Person indemnifying party shall not have reimbursed the Indemnified Person indemnified party in accordance with such request prior to the date of such settlement; PROVIDED. If an indemnifying party assumes the defense of any proceeding, HOWEVER, that it shall be entitled to settle such proceeding with the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Personindemnified party or, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless if such settlement (A) includes provides for an unconditional release of such the indemnified Personparty, in form and substance satisfactory to such Indemnified Personindemnified party, and without any admission of fault, culpability or failure to act or on behalf of the indemnified party, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission proceeding, without the consent of fault, culpability or failure to act by or on behalf of an Indemnified Personthe indemnified party.

incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the Participants any Initial Purchaser, its affiliates, directors and officers and any control persons of such control Persons of Participants Initial Purchaser shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants the Representative and any such separate firm for the IssuersCompany, the Guarantors, their directors, their respective directors and officers and such any control Persons persons of the Issuers Company and the Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such the Indemnifying Person of the aforesaid such request and (ii) such the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such indemnified Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an any Indemnified Person.

incurred. Any such separate firm for the Participants Initial Purchasers, its affiliates, its directors, its officers and such control Persons persons of Participants the Initial Purchasers shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants the Representatives and any such separate firm for the IssuersCompany, their its directors, their its officers and such control Persons persons of the Issuers Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such indemnified Person, in form and substance satisfactory to such Indemnified Person, Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in the first and second paragraphs of this Section 7 is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (Bi) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Securities 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 the Company on the one hand and the Initial Purchasers on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Initial Purchasers on the other shall be deemed to be in the same respective proportions as the net proceeds from the offering of such Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Initial Purchasers on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not include take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Initial Purchaser be required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Initial Purchaser with respect to the offering of the Securities exceeds the amount of any damages that such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement as or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to an admission contribution from any person who was not guilty of faultsuch fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section 7 are several in proportion to the respective principal amount of the Securities set forth opposite their names in Schedule I hereto, culpability and not joint. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or failure remedies which may otherwise be available to act any indemnified party at law or in equity. The indemnity and contribution agreements contained in this Section 7 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of an Indemnified Personany Initial Purchaser or any person controlling any Initial Purchaser or by or on behalf of the Company, its officers or directors or any other person controlling the Company and (iii) acceptance of and payment for any of the Securities.

incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of the Participants and such control Persons of Participants Underwriter shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants the Underwriter and any such separate firm for the Issuers, their directors, their officers Company and such any control Persons persons of the Issuers Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consentconsent (which consent shall not be unreasonably withheld), but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such the Indemnifying Person of the aforesaid such request and (ii) such the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified PersonPerson (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (Ax) includes an unconditional release of such indemnified Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (By) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an any Indemnified Person.

incurred. Any such separate firm for the Participants any Underwriter, its affiliates, directors and officers and any control persons of such control Persons of Participants Underwriter shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants and X.X. Xxxxxx Securities Inc., any such separate firm for the IssuersCompany, their its directors, their its officers who signed the Registration Statement and such any control Persons persons of the Issuers Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any each Indemnified Person from and against any loss or liability by reason of such settlement or or, subject to the terms of this Section 6, judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person to reimburse the Indemnified Person for reasonable and documented fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such the Indemnifying Person of the aforesaid such request and (ii) such the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity indemnification reasonably could have been sought hereunder by such Indemnified Person, unless such settlement (Ax) includes an unconditional release of such indemnified Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (By) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an such Indemnified Person.

incurred. Any In the case of any such separate firm for the Participants Underwriters and such control Persons persons and affiliates of Participants any Underwriters, such firm shall be designated in writing by Participants who sold a majority in interest you. In the case of Registrable Notes sold by all such Participants and any such separate firm for the IssuersCompany, their and such directors, their officers and such control Persons persons of the Issuers Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 11(d) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for HSBC Securities (USA) Inc., in its capacity as a “qualified independent underwriter”, and all Independent Underwriter Entities. The Indemnifying Person indemnifying party shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person indemnifying party agrees to indemnify any Indemnified Person the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person indemnified party shall have requested an Indemnifying Person indemnifying party to reimburse the Indemnified Person indemnified party for reasonable fees and expenses actually incurred by of counsel as contemplated by the second and third sentence sentences of this paragraph, the Indemnifying Person indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (iA) such settlement is entered into more than 30 days after receipt by such Indemnifying Person indemnifying party of the aforesaid request and (iiB) such Indemnifying Person indemnifying party shall not have reimbursed the Indemnified Person indemnified party in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person indemnifying party shall, without the prior written consent of the Indemnified Personindemnified party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person indemnified party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Personindemnified party, unless such settlement (Ai) includes an unconditional release of such indemnified Person, in form and substance satisfactory to such Indemnified Person, party from all liability on claims that are the subject matter of such proceeding and (Bii) does not include any a statement as to to, or an admission of of, fault, culpability or a failure to act by or on behalf of an Indemnified Personindemnified party.

incurred. Any such separate firm for the Participants any Underwriter, its affiliates, directors and officers and any control persons of such control Persons of Participants Underwriter shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants and X.X. Xxxxxx Securities LLC, any such separate firm for the IssuersCompany, their its directors, their its officers who signed the Registration Statement and such any control Persons persons of the Issuers Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such the Indemnifying Person of the aforesaid such request and (ii) such the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (Ax) includes an unconditional release of such indemnified Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (By) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an any Indemnified Person.

incurred. Any such separate firm for the Participants Underwriters, each affiliate of any Underwriter and such control Persons persons of Participants any of the Underwriters shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants the Underwriters and any such separate firm for the IssuersMacquarie Parties, the Issuer Trustee, any of their directors, their respective directors and officers who have prepared or will prepare the Prospectus and any such control Persons persons of any of the Issuers Macquarie Parties shall be designated in writing by the CompanyManager. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraphsubsection (c), the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement (Ai) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such Indemnified Person, and (ii) includes an unconditional release of such indemnified Person, in form and substance satisfactory to such Indemnified Person, Person from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of an Indemnified Personproceeding.

incurred. Any such separate firm for the Participants Underwriters and such control Persons of Participants shall be designated in writing by Participants who sold a majority in interest of Registrable Notes sold by all such Participants and any such separate firm for the Issuers, their directors, their officers and such control Persons persons of the Issuers Underwriters shall be designated in writing by the CompanyRepresentatives and any such separate firm for CNHICA and the Seller, the directors of CNHICA and the Seller, the officers of CNHICA and the Seller who sign the Registration Statement and such control persons of CNHICA and the Seller or authorized representatives shall be designated in writing by CNHICA and the Seller. The Indemnifying Person indemnifying party shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is be a final non-appealable judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreementplaintiff, the Indemnifying Person indemnifying party agrees to indemnify any Indemnified Person indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person indemnified party shall have requested that an Indemnifying Person to indemnifying party reimburse the Indemnified Person indemnified party for reasonable fees and expenses actually incurred by of counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it indemnifying party shall be liable for any settlement of any proceeding effected without its prior written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying party of such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person the indemnifying party shall not have reimbursed the Indemnified Person indemnified party in accordance with such request prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Person is contesting, in good faith, the request for reimbursement. No Indemnifying Person indemnifying party shall, without the prior written consent of the Indemnified Personindemnified party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person indemnified party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Personindemnified party, unless such settlement (Ax) includes an unconditional release of such indemnified Person, party in form and substance reasonably satisfactory to such Indemnified Person, indemnified party from all liability and fault on claims that are the subject matter of such proceeding and (By) does not include any statement as to an or any admission of fault, culpability or a failure to act by or on behalf of an Indemnified Personany indemnified party.