Common use of Indemnification by the Companies Clause in Contracts

Indemnification by the Companies. Each of the Companies jointly and -------------------------------- severally agrees to indemnify each of the Holders and their respective officers, directors, employees, agents, representatives, partners and affiliates, and each person or entity, if any, that controls a Holder within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter within the meaning of the Securities Act (an "Indemnitee") against any and all losses, claims, damages, actions, liabilities, costs and expenses (including without limitation reasonable attorneys' fees, expenses and disbursements documented in writing), joint or several, arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement or any prospectus contained therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as and to the extent that such statement or omission arose out of or was based upon information regarding the Indemnitee or its plan of distribution which was furnished to the Companies in writing by the Indemnitee for use therein, provided, further that the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, final prospectus, amendment or supplement in reliance upon and in conformity with information furnished to the Companies for use in connection with the Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the prospectus, amendment or supplement furnished to it by the Companies at or prior to the time such action is required by the Securities Act to the person claiming an untrue statement or alleged untrue statement or omission or alleged omission if such statement or omission was corrected in such prospectus, amendment or supplement. The obligations of the Companies under this Section 4 shall survive the completion of any offering of Registered Securities pursuant to the Registration Statement and shall survive the termination of this Agreement.

Indemnification by the Companies. Each of the (a) The Companies jointly shall indemnify and -------------------------------- severally agrees hold harmless (i) each Holder and its Affiliates, with respect to indemnify each of any registration statement filed pursuant to this Agreement, (ii) any underwriter or selling agent selected by the Holders and their respective officers, directors, employees, agents, representatives, partners and affiliates, and each person or entityother securities professional, if any, that controls a Holder within which facilitates the meaning disposition of the Registrable Securities Actwith respect to such Registrable Securities and (iii) each person who controls the Holder or Affiliate thereof or such underwriter, selling agent or securities professional, including their respective directors and officers of each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter or selling agent, within the meaning of Section 15 of the Securities Act (an "Indemnitee") and Section 20 of the Exchange Act, against any and all losses, claims, damages, actions, liabilities, costs and liabilities or expenses (including without limitation reasonable attorneys' fees, expenses each a "Loss" and disbursements documented in writingcollectively "Losses"), joint or several, arising to which the Holder or any such persons may become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon (A) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement a registration statement, or any prospectus contained thereinamendments or supplements thereto, in which such Registrable Securities are to be or were included for registration under the Securities Act, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements thereinin such Registration Statement, amendment or supplement, not misleading, (B) any untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus if used prior to the effective date of the registration statement (unless such statement is corrected in the final Prospectus and Pioneer shall have furnished a sufficient number of copies thereof to the Holder in a manner and at a time sufficient to permit delivery of the same to prospective purchasers concurrently with or prior to the sale of the related Registrable Securities), any final Prospectus (as supplemented, if the applicable Company shall have filed with the Commission any supplement thereto) if used during the period in which the Company is required to keep the registration statement to which such Prospectus relates current and otherwise in compliance with Section 10(a) of the Securities Act, or any omission or alleged omission to state a material fact required to be stated or necessary to the make statements in such preliminary Prospectus or final Prospectus, in the light of the circumstances under which they such statements were made, not misleading, except insofar as and to the extent that such statement or omission arose out of (C) any material violation or was based upon information regarding the Indemnitee or its plan of distribution which was furnished to the Companies in writing by the Indemnitee for use therein, provided, further that the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities or any other person, if any, who controls such underwriter within the meaning alleged material violation of the Securities Act, in the Exchange Act, the rules and regulations as promulgated of the Securities Act and the Exchange Act, and state securities laws; provided, however, that the Companies shall have no obligation to provide any such case indemnification hereunder to the extent that any such loss, claim, damage, liability Losses (or action actions or proceeding proceedings in respect thereof) or expense arises arise out of or is are based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementregistration statement, preliminary Prospectus or final prospectusProspectus, amendment or supplement as the case may be, in reliance upon and in conformity with written information furnished to the Companies any Company by a Holder seeking such indemnification or on such Holder's behalf specifically for use inclusion in connection with the Registration Statement such registration statement. The indemnity provided in this Section 7.1 shall remain in full force and effect regardless of any investigation made by or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy on behalf of the prospectus, amendment Holder or supplement furnished to it by the Companies at or prior to the time any such action is required by the Securities Act to the person claiming an untrue statement or alleged untrue statement or omission or alleged omission if such statement or omission was corrected in such prospectus, amendment or supplement. The obligations of the Companies under this Section 4 shall survive the completion of any offering of Registered Securities pursuant to the Registration Statement other persons and shall survive the termination transfer of this Agreementthe Registrable Securities by the Holder or any such other persons.

Indemnification by the Companies. Each of the The Companies jointly and -------------------------------- severally agrees agree to indemnify and hold harmless each of the Holders and their respective Shareholder, its officers, directors, employees, agentsmanagers, representativesmembers, partners and affiliatesagents, and each person or entityPerson, if any, that who controls a Holder any such Persons within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter within the meaning Section 15 of the Securities Act (an "Indemnitee") or Section 20 of the Exchange Act from and against any and all losses, claims, damages, actions, liabilities, costs liabilities and expenses (including without limitation reasonable expenses of investigation and reasonable attorneys' fees, expenses ’ fees and disbursements documented in writing), joint expenses) (“Damages”) caused by or several, arising out of or based upon relating to any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registration Statement Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any prospectus contained thereinpreliminary prospectus, or caused by or relating to any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light therein not misleading or caused by or related to any violation or alleged violation of the circumstances under which they were made, not misleadingSecurities Act or Exchange Act, except insofar as and such Damages are caused by or related to the extent that any such untrue statement or omission arose out of or was based upon information regarding the Indemnitee or its plan of distribution which was furnished to the Companies in writing by the Indemnitee for use therein, provided, further that the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission so made in such Registration Statement, final prospectus, amendment or supplement in reliance upon and in conformity with information furnished in writing to the Companies Company by such Shareholder or on such Shareholder’s behalf expressly for use in connection therein, provided that, with the Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure respect to send or give a copy of the prospectus, amendment or supplement furnished to it by the Companies at or prior to the time such action is required by the Securities Act to the person claiming an any untrue statement or omission or alleged untrue statement or omission or alleged omission if such statement or omission was corrected made in such any preliminary prospectus, amendment or supplement. The obligations in any prospectus, as the case may be, the indemnity agreement contained in this paragraph shall not apply to the extent that any Damages result from the fact that a current copy of the Companies under this Section 4 shall survive prospectus (or such amended or supplemented prospectus, as the completion of any offering of Registered Securities pursuant case may be) was not sent or given to the Registration Statement Person asserting any such Damages at or prior to the written confirmation of the sale of the Registrable Securities concerned to such Person if it is determined that the Company has provided such prospectus to such Shareholder and shall survive it was the termination responsibility of this Agreementsuch Shareholder to provide such Person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such Damages.

Indemnification by the Companies. Each of the The Companies jointly and -------------------------------- severally agrees agree to indemnify and hold harmless each of the Holders Management Shareholder, solely in its capacity as a selling shareholder, from and their respective officers, directors, employees, agents, representatives, partners and affiliates, and each person or entity, if any, that controls a Holder within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter within the meaning of the Securities Act (an "Indemnitee") against any and all losses, claims, damages, actions, liabilities, costs liabilities and expenses (including without limitation reasonable expenses of investigation and reasonable attorneys' fees, expenses ’ fees and disbursements documented in writing), joint expenses) (“Damages”) caused by or several, arising out of or based upon relating to any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registration Statement Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any prospectus contained thereinpreliminary prospectus, or caused by or relating to any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light therein not misleading or caused by or related to any violation or alleged violation of the circumstances under which they were made, not misleadingSecurities Act or Exchange Act, except insofar as and such Damages are caused by or related to the extent that any such untrue statement or omission arose out of or was based upon information regarding the Indemnitee or its plan of distribution which was furnished to the Companies in writing by the Indemnitee for use therein, provided, further that the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission so made in such Registration Statement, final prospectus, amendment or supplement in reliance upon and in conformity with information furnished in writing to the Companies Company by such Management Shareholder or on such Management Shareholder’s behalf, solely in its capacity as a selling shareholder, expressly for use in connection therein, provided that, with the Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure respect to send or give a copy of the prospectus, amendment or supplement furnished to it by the Companies at or prior to the time such action is required by the Securities Act to the person claiming an any untrue statement or omission or alleged untrue statement or omission or alleged omission if such statement or omission was corrected made in such any preliminary prospectus, amendment or supplement. The obligations in any prospectus, as the case may be, the indemnity agreement contained in this paragraph shall not apply to the extent that any Damages result from the fact that a current copy of the Companies under this Section 4 shall survive prospectus (or such amended or supplemented prospectus, as the completion of any offering of Registered Securities pursuant case may be) was not sent or given to the Registration Statement Person asserting any such Damages at or prior to the written confirmation of the sale of the Registrable Securities concerned to such Person if it is determined that the Company has provided such prospectus to such Management Shareholder and shall survive it was the termination responsibility of this Agreementsuch Management Shareholder to provide such Person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such Damages.

Indemnification by the Companies. Each of the Companies Companies, jointly and -------------------------------- severally agrees severally, shall, without limitation as to time, indemnify and hold harmless each Holder and each Participating Broker-Dealer selling Exchange Securities during the Applicable Period, each Person who controls each such Holder (within the meaning of Section 15 of the Holders Securities Act or Section 20(a) of the Exchange Act) and their respective the officers, directors, partners, employees, agents, representatives, partners representatives and affiliates, and agents of each person or entity, if any, that controls a Holder within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a such Holder, Participating Broker-Dealer and any underwriter controlling person, to the fullest extent lawful, from and any person who controls the underwriter within the meaning of the Securities Act (an "Indemnitee") against any and all losses, claims, damages, actions, liabilities, costs (including, without limitation, reasonable costs of preparation and expenses (including without limitation reasonable attorneys' fees) and expenses (including, without limitation, reasonable costs and expenses and disbursements documented incurred in writingconnection with investigating, preparing, pursuing or defending against any of the foregoing) (collectively, "Losses"), joint as incurred, directly or severalindirectly caused by, related to, based upon, arising out of or based upon in connection with any untrue or alleged untrue statement of a material fact contained in the any Registration Statement Statement, Prospectus or form of prospectus, or in any prospectus contained thereinamendment or supplement thereto, or in any preliminary prospectus, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as and to the extent that such statement or omission arose out of or was Losses are based upon information regarding the Indemnitee relating to such Holder or its plan of distribution which was Participating Broker-Dealer and furnished in writing to the Companies in writing Company by the Indemnitee such Holder or Participating Broker-Dealer expressly for use therein, ; provided, further however, that none of the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case Indemnified Party to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises losses arise solely out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, final prospectus, amendment or supplement in reliance upon and in conformity with information furnished to the Companies for use in connection with the Registration Statement or the any preliminary prospectus contained therein by such Indemnitee or if (iii) such Indemnitee's failure Indemnified Party or related holder of a Registrable Security failed to send or give deliver a copy of the prospectus, amendment or supplement furnished to it by the Companies at Prospectus with or prior to the time delivery of written confirmation of the sale by such action is required by Indemnified Party or the Securities Act related holder of a Registrable Security to the person claiming an asserting the claim from which such Losses arise, (ii) the Prospectus would have corrected such untrue statement or alleged untrue statement or omission or alleged omission if such statement or omission was corrected in such prospectusomission, amendment or supplementand (iii) the Company has complied with its obligations under Section 6(e). The obligations Each of the Companies under shall also, jointly and severally, indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each Person who controls such Persons (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders or the Participating Broker-Dealer. Notwithstanding any provision hereof to the contrary, the liability of each of TARC and TransTexas pursuant to this Section 4 8(a) shall survive be limited to the completion amount of any offering proceeds of Registered Securities the Offering (as defined in the Purchase Agreement) received directly or indirectly by such corporation, including without limitation pursuant to the Registration Statement and shall survive transactions contemplated hereby, by the termination of this Purchase Agreement or by the Offering Circular (as defined in the Purchase Agreement).

Indemnification by the Companies. Each of the The Companies jointly and -------------------------------- severally agrees agree to indemnify each of the Holders and their respective officers, directors, employees, agents, representatives, partners representatives and affiliates, and each person or entity, if any, that controls a Holder within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter within the meaning of the Securities Act (an "Indemnitee") against any and all losses, claims, damages, actions, liabilities, costs and expenses (including without limitation reasonable attorneys' fees, expenses and disbursements documented in writing), joint or several, arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in the Registration Statement or any prospectus contained thereintherein or any amendments or supplements thereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) any violation or alleged violation by the REIT or the Operating Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law; except insofar as and to the extent that such statement or omission or violation arose out of or was based upon information regarding the Indemnitee or its plan of distribution which was furnished in writing to the Companies in writing by the Indemnitee for use therein, ; provided, further that the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities Registrable Shares or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with information furnished in writing by such underwriter or any other person, if any, who controls such underwriter within the meaning of the Securities Act to the Companies for use in connection with the Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the final prospectus, or amendment or supplement thereto, furnished to it by the Companies at or prior to the time such action is required by the Securities Act to the person claiming an untrue statement or alleged untrue statement or omission or alleged omission if such statement or omission was corrected in such final prospectus, amendment as amended or supplementsupplemented. The obligations of the Companies under this Section 4 5 shall survive the completion of any offering of Registered Securities Registrable Shares pursuant to the a Registration Statement under this Agreement or otherwise and shall survive the termination of this Agreement.

Indemnification by the Companies. Each of the Companies jointly and -------------------------------- severally agrees to -------------------------------- indemnify each of the Holders and their respective officers, directors, employees, agents, representatives, partners representatives and affiliates, and each person or entity, if any, that controls a Holder the Holders within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holderthe Holders, and any underwriter and any person who controls the underwriter within the meaning of the Securities Act (an "Indemnitee") against any and all losses, claims, damages, actions, liabilities, costs and expenses (including without limitation reasonable attorneys' fees, expenses and disbursements documented in writing), joint or several, arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Shelf Registration Statement or any prospectus contained therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as and to the extent that such statement or omission arose out of or was based upon information regarding the Indemnitee or its plan of distribution which was furnished to the Companies in writing by the Indemnitee in writing for use therein, provided, further that the Companies shall not be liable to any person who participates as an underwriter in the offering or sale of Registered Securities or Registrable Shares or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such Shelf Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with information furnished in writing to the Companies for use in connection with the Shelf Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the prospectus, amendment or supplement final prospectus furnished to it by the Companies at or prior to the time such action is required by the Securities Act to the person claiming an untrue statement or alleged untrue statement or omission or alleged omission if such statement or omission was corrected in such final prospectus, amendment or supplement. The obligations of the Companies under this Section 4 5 shall survive the completion of any offering of Registered Securities Registrable Shares pursuant to the Shelf Registration Statement under this Agreement or otherwise and shall survive the termination of this Agreement.

Indemnification by the Companies. Each Subject to the terms and conditions of Section 15 of this Agreement, the Companies jointly shall indemnify, defend and -------------------------------- severally agrees to indemnify each of the Holders hold harmless Purchaser, Parent and their Affiliates, and their respective controlling persons, stockholders, officers, directors, employees, agentsrepresentatives and agents (collectively, representatives, partners and affiliates, and each person or entity, if any, that controls a Holder within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter within the meaning of the Securities Act (an "IndemniteePurchaser Indemnified Parties") promptly upon demand at any time and from time to time, against any and all losses, claimsLiabilities, damagesClaims, actions, liabilitiessuits, costs Taxes, penalties, fines, fees, obligations, encumbrances, damages and expenses (including expenses, including, without limitation limitation, reasonable attorneys' fees, expenses fees and disbursements documented in writing(collectively, "Losses"), joint or several, arising out of or based upon in connection with any untrue or alleged untrue statement of material fact contained in the Registration Statement or any prospectus contained therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were madefollowing: (a) any misrepresentation or breach of any warranty made by the Companies in any of Seller's Documents (including, not misleadingwithout limitation, any schedule or exhibit thereto or certificate delivered in connection therewith); (b) any breach or nonfulfillment of any covenant or agreement made by the Companies in any of Seller's Documents (including, without limitation, any schedule or exhibit thereto or certificate delivered in connection therewith); (c) any non-compliance with any applicable Requirement of Law relating to "bulk sales"; (d) the ownership or operation of the Purchased Business or the Purchased Assets prior to the Closing Date (except insofar as and to the extent that such statement included in the Assumed Contracts); (e) any benefit plan or omission arose arrangement (including the Benefit Plans) sponsored, maintained or contributed to by the Company or an ERISA Affiliate; (f) any obligation or liability to any Person listed on Schedule 5.15 or other present or former employee of the Company, or to any dependent, survivor or beneficiary thereof, arising out of or was based upon information regarding the Indemnitee or its plan of distribution which was furnished to the Companies in writing by the Indemnitee for use therein, provided, further that the Companies shall not be liable relating to any person who participates as such person's employment with the Company or an underwriter in the offering or sale of Registered Securities or ERISA Affiliate, except for matters Purchaser and Parent are responsible for under Section 2.4 hereof; (g) any other person, if any, who controls such underwriter within the meaning Losses arising out of the Securities Act, in Retained Liabilities; and (h) any such case non-compliance with any applicable Requirement of Law relating to the extent that any such loss, claim, damage, liability (abandoned or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, final prospectus, amendment or supplement in reliance upon and in conformity with information furnished to the Companies for use in connection with the Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy of the prospectus, amendment or supplement furnished to it by the Companies at or prior to the time such action is required by the Securities Act to the person claiming an untrue statement or alleged untrue statement or omission or alleged omission if such statement or omission was corrected in such prospectus, amendment or supplement. The obligations of the Companies under this Section 4 shall survive the completion of any offering of Registered Securities pursuant to the Registration Statement and shall survive the termination of this Agreementunclaimed property.

Indemnification by the Companies. Each of the The Companies jointly and -------------------------------- severally agrees agree to indemnify and hold harmless the Fund and each of the Holders its directors and their respective officers, directors, employees, agents, representatives, partners and affiliates, officers and each person or entityperson, if any, that who controls a Holder the Fund within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with a Holder, and any underwriter and any person who controls the underwriter within the meaning Section 15 of the Securities 1933 Act (an collectively, the "Indemnitee"Indemnified Parties" for purposes of this Section 7.1) against any and all losses, claims, damages, actionsliabilities (including amounts paid in settlement with the written consent of the Companies, liabilitieswhich consent will not be unreasonably withheld) or litigation (including legal and other expenses), costs and to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as such losses, claims, damages, liabilities or expenses (including without limitation reasonable attorneys' fees, expenses and disbursements documented or actions in writing), joint respect thereof) or several, arising settlements are related to the sale or acquisition of the Fund's shares or the Contracts and: arise out of or are based upon any untrue statements or alleged untrue statement statements of any material fact contained in the Registration Statement or prospectus for the Contracts or contained in the Contracts or sales literature for the Contracts (or any prospectus contained thereinamendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to the Companies by or on behalf of the Fund for use in the Registration Statement or prospectus for the Contracts or in the Contracts or sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Contracts or Fund shares; or arise out of or as a result of statements or representations (other than statements or representations contained in the Registration Statement, prospectus or sales literature of the Fund not supplied by the Companies, or persons under their control) or wrongful conduct of the Companies or persons under their control, with respect to the sale or distribution of the Contracts or Fund Shares; or arise out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, prospectus, or sales literature of the Fund or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, except insofar as and to the extent that misleading if such a statement or omission arose was made in reliance upon information furnished to the Fund by or on behalf of the Companies; or arise as a result of any failure by the Companies to provide the services and furnish the materials under the terms of this Agreement; or arise out of or was based upon information regarding the Indemnitee or its plan result from any material breach of distribution which was furnished to any representation and/or warranty made by the Companies in writing this Agreement or arise out of or result from any other material breach of this Agreement by the Indemnitee for use thereinCompanies, provided, further that as limited by and in accordance with the provisions of Sections 7.1(b) and 7.1(c) hereof. The Companies shall not be liable under this indemnification provision with respect to any person who participates losses, claims, damages, liabilities or litigation incurred or assessed against an Indemnified Party as an underwriter such may arise from such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the offering performance of such Indemnified Party's duties or by reason of such Indemnified Party's reckless disregard of obligations or duties under this Agreement or to the Fund, whichever is applicable. The Companies shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Companies in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Companies of any such claim shall not relieve the Companies from any liability which they may have to the Indemnified Party against whom such action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Companies shall be entitled to participate, at their own expense, in the defense of such action. The Companies also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action. After notice from the Companies to such party of the Companies' election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Companies will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Parties will promptly notify the Companies of the commencement of any litigation or proceedings against them in connection with the issuance or sale of Registered Securities the Fund Shares or any other the Contracts or the operations of the Fund. Indemnification by the Fund and the Adviser The Fund and the Adviser agree to indemnify and hold harmless the Companies and each of their directors and officers and each person, if any, who controls such underwriter the Companies within the meaning of Section 15 of the Securities Act1933 Act (collectively, the "Indemnified Parties" for purposes of this Section 7.2) against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Fund, which consent shall not be unreasonably withheld) or litigation (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such case to the extent that any such losslosses, claimclaims, damagedamages, liability liabilities or expenses (or action or proceeding actions in respect thereof) or expense arises settlements are related to the sale or acquisition of the Fund's shares or the Contracts and: arise out of or is are based upon (i) an any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or prospectus or sales literature of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in such Registration Statement, final prospectus, amendment or supplement in reliance upon and in conformity with information furnished to the Adviser or Fund by or on behalf of the Companies for use in the Registration Statement or prospectus for the Fund or in sales literature (or any amendment or supplement) or otherwise for use in connection with the Registration Statement or the prospectus contained therein by such Indemnitee or (ii) such Indemnitee's failure to send or give a copy sale of the prospectusContracts or Fund shares; or arise out of or as a result of statements or representations (other than statements or representations contained in the Registration Statement, amendment prospectus or supplement furnished to it sales literature for the Contracts not supplied by the Companies at Adviser or prior Fund or persons under its control) or wrongful conduct of the Fund or Adviser or persons under their control, with respect to the time such action is required by sale or distribution of the Securities Act to the person claiming an Contracts or Fund shares; or arise out of any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement, prospectus or sales literature covering the Contracts, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, if such statement or omission was corrected made in such prospectus, amendment reliance upon information furnished to the Companies by or supplement. The obligations on behalf of the Companies under this Section 4 shall survive the completion Fund; or arise as a result of any offering failure by the Fund to provide the services and furnish the materials under the terms of Registered Securities pursuant this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the Registration Statement and shall survive the termination diversification requirements specified in Article II of this Agreement); or arise out of or result from any material breach of any representation and/or warranty made by the Fund or the Adviser in this Agreement or arise out of or result from any other material breach of this Agreement by the Fund or the Adviser; as limited by and in accordance with the provisions of Sections 7.2(b) and 7.2(c) hereof. The Fund or the Adviser shall not be liable under this indemnification provision with respect to any losses, claims, damages, liabilities or litigation to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to the Companies or Account, whichever is applicable. The Fund and the Adviser shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Fund and the Adviser in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Fund and the Adviser of any such claim shall not relieve the Fund and the Adviser from any liability which they may have to the Indemnified Party against whom such action is brought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Fund and the Adviser will be entitled to participate, at their own expense, in the defense thereof. The Fund and the Adviser also shall be entitled to assume the defense thereof with counsel satisfactory to the party named in the action. After notice from the Fund and the Adviser to such party of the Fund's and the Adviser's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, and the Fund and the Adviser will not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. The Companies agree promptly to notify the Fund and the Adviser of the commencement of any litigation or proceedings against them or any of their officers or directors in connection with the issuance or sale of the Contracts or the operation of the Account.