Common use of incurred Clause in Contracts

incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by you. In the case of any such separate firm for the Company, and such directors, officers and control persons of the 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 party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify 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 party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (A) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (B) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.

incurred. In Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of the case of Underwriter shall be designated in writing by the Underwriter and any such separate firm for the Underwriters Company and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by you. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm Company 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 party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consentconsent (which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested that an indemnifying party to Indemnifying Person reimburse the indemnified party Indemnified Person for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (Ai) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such indemnifying party of the aforesaid request and (Bii) such indemnifying party the Indemnifying Person shall not have reimbursed the indemnified party Indemnified Person in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (ix) includes an unconditional release of such indemnified party 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 (iiy) does not include a any statement as to, to or an any admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partyany Indemnified Person.

incurred. In the case of any Any such separate firm for the Underwriters Underwriters, each affiliate of any Underwriter and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by you. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm Underwriters shall be designated in writing by the Company. In the case of Underwriters and any such separate firm for the Selling Shareholders Macquarie Parties, the Issuer Trustee, any of their respective directors and officers who have prepared or will prepare the Prospectus and any such control persons of any Selling Shareholders, such firm of the Macquarie Parties 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 EntitiesManager. The indemnifying party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested an indemnifying party Indemnifying Person to reimburse the indemnified party Indemnified Person for fees and expenses of counsel as contemplated by the second and third sentences sentence of this paragraphsubsection (c), the indemnifying party Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (Ai) such settlement is entered into more than 30 days after receipt by such indemnifying party Indemnifying Person of the aforesaid request and (Bii) such indemnifying party Indemnifying Person shall not have reimbursed the indemnified party Indemnified Person in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, to or an admission of, fault, culpability or a failure to act by or on behalf of any such Indemnified Person, and (ii) includes an indemnified partyunconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding.

incurred. In the case of any such separate firm for proceeding, any Indemnified Person shall have the Underwriters right to retain its own counsel, but the fees and expenses of such control persons and affiliates of any Underwriters, counsel reasonably incurred by such firm Indemnified Person shall be designated in writing by you. In at the case expense of any such separate firm for Indemnified Person unless: (i) the Company, Indemnifying Person and such directors, officers and control persons of the Company, such firm Indemnified Person 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 have mutually agreed to the contrary, if indemnity ; (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 sought pursuant legal defenses available to Section 11(d) hereof in respect of such action it that are different from or proceeding, then in addition to those available to the Indemnifying Person; or (iv) the named parties in any such separate firm for proceeding (including any impleaded parties) include both the indemnified partiesIndemnifying 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 indemnifying party shall same jurisdiction, be liable for the reasonable documented fees and expenses of not more than one separate firm (in addition to any one local counselcounsel in each relevant jurisdiction) for HSBC Securities (USA) Inc., in its capacity as a “qualified independent underwriter”all Indemnified Persons, and that all Independent Underwriter Entitiesdocumented 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 directors, officers and any control persons of any such Holders shall be designated in writing by the Holders who sold a majority in aggregate principal amount of the Securities or New Securities by all such Holders and any such separate firm for the Parent, the Issuer, their respective directors and officers and any control persons of the Parent and the Issuer shall be designated in writing by the Issuer. The indemnifying party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (A) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (B) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (ix) includes an unconditional release of such indemnified party 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 (iiy) does not include a any statement as to, to or an any admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partyany Indemnified Person.

incurred. In the case of any Any such separate firm for the Underwriters any Underwriter, its affiliates, directors and such officers and any control persons and affiliates of any Underwriters, such firm Underwriter shall be designated in writing by you. In the case of X.X. Xxxxxx Securities LLC, any such separate firm for the Company, and such its directors, its officers who signed the Registration Statement and any control persons of the Company, such firm Company 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 party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested that an indemnifying party to Indemnifying Person reimburse the indemnified party Indemnified Person for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (Ai) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such indemnifying party of the aforesaid request and (Bii) such indemnifying party the Indemnifying Person shall not have reimbursed the indemnified party Indemnified Person in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (ix) includes an unconditional release of such indemnified party 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 (iiy) does not include a any statement as to, to or an any admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partyany Indemnified Person.

incurred. In the case of any Any such separate firm for the Underwriters Initial Purchasers, its affiliates, its directors, its officers and such control persons and affiliates of any Underwriters, such firm the Initial Purchasers shall be designated in writing by you. In the case of Representatives and any such separate firm for the Company, its directors, its officers and such directors, officers and control persons of the Company, such firm Company 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 party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (A) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (B) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (i) includes an unconditional release of such indemnified party Indemnified 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 (i) 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 toor 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 contribution from any person who was not guilty of such 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, and not joint. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or an admission ofremedies which may otherwise be available to 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, fault, culpability or a failure to act (ii) any investigation made by or on behalf of an indemnified partyany 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. In the case of any such separate firm for proceeding, any Indemnified Person shall have the Underwriters right to retain its own counsel, but the fees and expenses of such control persons and affiliates of any Underwriters, such firm counsel shall be designated in writing by you. In at the case expense of any such separate firm for Indemnified Person unless (i) the Company, Indemnifying Person and such directors, officers and control persons of the Company, such firm Indemnified Person 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 have mutually agreed to the contrary, if indemnity ; (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 sought pursuant legal defenses available to Section 11(d) hereof in respect of such action it that are different from or proceeding, then in addition to those available to the Indemnifying Person; or (iv) the named parties in any such separate firm for proceeding (including any impleaded parties) include both the indemnified partiesIndemnifying 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 indemnifying party shall same jurisdiction, 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”all Indemnified Persons, and that all Independent Underwriter Entitiessuch fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Initial Purchaser, its affiliates, directors and officers and any control persons of such Initial Purchaser shall be designated in writing by the Representative and any such separate firm for the Company, the Guarantors, their respective directors and officers and any control persons of the Company and the Guarantors shall be designated in writing by the Company. The indemnifying party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested that an indemnifying party to Indemnifying Person reimburse the indemnified party Indemnified Person for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (Ai) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such indemnifying party of the aforesaid request and (Bii) such indemnifying party the Indemnifying Person shall not have reimbursed the indemnified party Indemnified Person in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (iA) includes an unconditional release of such indemnified party 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 (iiB) does not include a any statement as to, to or an any admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partyany Indemnified Person.

incurred. In the case of any Any such separate firm for the Underwriters any Underwriter, its affiliates, directors and such officers and any control persons and affiliates of any Underwriters, such firm Underwriter shall be designated in writing by you. In the case of X.X. Xxxxxx Securities Inc., any such separate firm for the Company, and such its directors, its officers who signed the Registration Statement and any control persons of the Company, such firm Company shall be designated in writing by the Company. In the case of Company and any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm Stockholders shall be designated in writing by the persons named as attorneysAttorney-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 EntitiesFact. The indemnifying party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested that an indemnifying party to Indemnifying Person reimburse the indemnified party Indemnified Person for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (Ai) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such indemnifying party of the aforesaid request and (Bii) such indemnifying party the Indemnifying Person shall not have reimbursed the indemnified party Indemnified Person in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity indemnification could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (ix) includes an unconditional release of such indemnified party 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 (iiy) does not include a any statement as to, to or an any admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partyany Indemnified Person.

incurred. In Notwithstanding the case of foregoing, any indemnified party shall have the right to retain its own counsel in any such separate firm for action, but the Underwriters fees and disbursements of such control persons and affiliates of any Underwriters, such firm counsel shall be designated in writing by you. In at the case of any such separate firm for the Company, and such directors, officers and control persons of the 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 expense of such action or proceeding, then in addition to such separate firm for the indemnified parties, 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 reasonable fees and expenses disbursements of not more than one separate firm (qualified in addition such jurisdiction to any local counsel) act as counsel for HSBC Securities (USA) Inc., in its capacity as a “qualified independent underwriter”, and all Independent Underwriter Entitiesthe indemnified party. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding If the foregoing sentence, if at any time indemnification provided for in the first two paragraphs of this Section 5 is unavailable or insufficient to hold harmless an indemnified party shall have requested an under such paragraphs in respect of any losses, claims, damages or liabilities or actions in respect thereof referred to therein, then each indemnifying party to reimburse the shall in lieu of indemnifying such indemnified party for fees 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 expenses the sellers of counsel such Registerable Stock, on the other, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or actions as contemplated 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 second Company, on the one hand, or the sellers of such Registerable Stock, on the other, and third sentences 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 provisions of this paragraph, the indemnifying party agrees that it sellers of such Registerable Stock shall not be required to contribute any 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 the public exceeds the amount of any damages which they would have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act), shall be liable for entitled to contribution from any settlement of any proceeding effected without its written consent if (A) such settlement person who is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (B) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date guilty of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified partyfraudulent misrepresentation.

incurred. In the case of any Any such separate firm for the Underwriters any Underwriter, its affiliates, directors and such officers and any control persons and affiliates of any Underwriters, such firm Underwriter shall be designated in writing by you. In the case of X.X. Xxxxxx Securities Inc., any such separate firm for the Company, and such its directors, its officers who signed the Registration Statement and any control persons of the Company, such firm Company 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 party Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested that an indemnifying party to Indemnifying Person reimburse the indemnified party Indemnified Person for reasonable and documented fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (Ai) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such indemnifying party of the aforesaid request and (Bii) such indemnifying party the Indemnifying Person shall not have reimbursed the indemnified party Indemnified Person in accordance with such request prior to the date of such settlement. No indemnifying party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity indemnification reasonably could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (ix) includes an unconditional release of such indemnified party 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 (iiy) does not include a any statement as to, to or an any admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partysuch Indemnified Person.

incurred. In Any such separate firm for the case 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 Underwriters Issuers, their directors, their officers and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by you. In the case of any such separate firm for the Company, and such directors, officers and control persons Persons of the Company, such firm Issuers 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 party 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 be is a final non-appealable judgment for the plaintiffplaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreement, the indemnifying party Indemnifying Person agrees to indemnify the indemnified party 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 party Indemnified Person shall have requested an indemnifying party Indemnifying Person to reimburse the indemnified party Indemnified Person for reasonable fees and expenses of actually incurred by counsel as contemplated by the second and third sentences sentence of this paragraph, the indemnifying party Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its prior written consent if (Ai) such settlement is entered into more than 30 days after receipt by such indemnifying party Indemnifying Person of the aforesaid request and (Bii) such indemnifying party Indemnifying Person shall not have reimbursed the indemnified party 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 party Indemnifying Person shall, without the prior written consent of the indemnified partyIndemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such indemnified partyIndemnified Person, unless such settlement (iA) includes an unconditional release of such indemnified party Person, in form and substance satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (iiB) does not include a any statement as to, or to an admission of, of fault, culpability or a failure to act by or on behalf of an indemnified partyIndemnified Person.