Common use of Indemnification of Purchasers Clause in Contracts

Indemnification of Purchasers. Subject to the provisions of this Section 4.1, each Seller, severally and not jointly, will indemnify and hold the Investor and each of its respective officers, directors, Affiliates, agents and employees (each, an “Indemnified Party”) harmless from any and all out-of-pocket loss, Liability, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) incurred by such Indemnified Party resulting from (a) any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or in any other Transaction Document or (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, Guarantors will jointly and severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting any Exchange Act Report or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information consists of the information furnished by any Purchaser described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, Guarantors will jointly and severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting any Exchange Act Report or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information consists of the information furnished by any Purchaser described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to the provisions of this Section 4.1, each Seller, severally and not jointly, The Company will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (including reasonable legalor actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, consultantin each case as amended or supplemented, accounting any Issuer Free Writing Communication (including, without limitation, any Supplemental Marketing Material), any General Solicitation Communication (including, in each case, the Exchange Act Reports, as applicable), or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (a) whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectivelythe above as such expenses are incurred; provided, as appropriatehowever, as that the “Indemnifying Party”) contained in this Agreement or Company will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantor will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal, damagestate or Canadian statutory law or regulation or otherwise, fee insofar as such losses, claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or the Exchange Act Reports, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (a) whether or not such Indemnified Party is a party thereto), whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantor will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantor will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwithout limitation, consultantany Supplemental Marketing Material), accounting or the Exchange Act Reports, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantor will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, Guarantors will jointly and severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting any Exchange Act Report, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (a) whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject The Company agrees to the provisions of this Section 4.1, each Seller, severally and not jointly, will indemnify and hold harmless the Investor Purchasers and each person, if any, who controls the Purchasers within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (each, an “Indemnified Party”i) harmless from against any and all out-of-pocket loss, Liabilityliability, claim, chargedamage and expense whatsoever, assessed interestas incurred, judgmentarising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectivelyprospectus, “Losses”) incurred by such Indemnified Party resulting from (a) any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or in any offering circular or other Transaction Document document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 8.3(c) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Purchasers), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (bii) above; provided, however, that this indemnity agreement shall not apply to any failure loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby Purchasers expressly for use in the Registration Statement (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws amendment thereto), including any prospectus (or any conduct by the Investor which constitutes fraudamendment or supplement thereto), gross negligenceor in any offering circular or other document, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1as applicable.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantors will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal, damagestate or Canadian statutory law or regulation or otherwise, fee insofar as such losses, claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or the Exchange Act Reports, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (a) whether or not such Indemnified Party is a party thereto), whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to the provisions In consideration of each Purchaser's execution and delivery of this Section 4.1Agreement and making the Loans and in addition to all of the Corporation's other obligations under this Agreement and the other Operative Documents, each Sellerthe Corporation shall defend, severally and not jointlyprotect, will indemnify and hold the Investor harmless each Purchaser, each other holder of Purchaser Securities and each Person, if any, who controls any Purchaser within the meaning of its respective Section 15 of the Securities Act or Section 20 of the Exchange Act, and all of their officers, directors, Affiliatesemployees and agents (including, agents and employees (eachwithout limitation, an “Indemnified Party”) harmless from any and all out-of-pocket loss, Liability, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under those retained in connection with the transactions contemplated by this Agreement or any other Transaction DocumentAgreement) (collectively, “Losses”the "INDEMNITEES") from and against any and all actions, causes of action, suits, claims, losses, diminution of value, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements and expenses incurred in the investigation or defense of any of the same or in asserting, preserving or enforcing any of their respective rights hereunder (the "INDEMNIFIED LIABILITIES"), incurred by such Indemnified Party resulting from the Indemnitees or any of them as a result of, or arising out of, or relating to (ai) the execution, delivery, performance or enforcement of this Agreement, the other Operative Documents and any other instrument, certificate, document or agreement executed pursuant hereto by any of the Indemnitees or (ii) any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectivelycovenant, as appropriateagreement, as the “Indemnifying Party”) contained in this Agreement or in any other Transaction Document or (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in of the Corporation under this Agreement, any other Transaction Operative Document or any certificate delivered pursuant other instrument, certificate, document or agreement contemplated hereby to this Agreement or which the Corporation is a party. To the extent that the foregoing undertaking by the Corporation may be unenforceable for any other Transaction Documentreason, each such representation or warranty the Corporation shall be read without reference make the maximum contribution to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries the payment and satisfaction of this Section 4.1, each of whom may enforce the provisions of this Section 4.1Indemnified Liabilities which is permissible under applicable law.

Indemnification of Purchasers. Subject to the provisions In consideration of each Purchaser's execution and delivery of this Section 4.1Agreement and acquiring the Preferred Stock hereunder and in addition to all of the Company's other obligations under this Agreement and the other Operative Documents, each Sellerthe Company shall defend, severally and not jointlyprotect, will indemnify and hold the Investor harmless each Purchaser, each other holder of Purchaser Securities and each Person, if any, who controls any Purchaser within the meaning of its respective Section 15 of the Securities Act or Section 20 of the Exchange Act, and all of their officers, directors, Affiliatesemployees and agents (including, agents and employees (eachwithout limitation, an “Indemnified Party”) harmless from any and all out-of-pocket loss, Liability, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under those retained in connection with the transactions contemplated by this Agreement or any other Transaction DocumentAgreement) (collectively, “Losses”the "Indemnitees") from and against any and all actions, causes of action, suits, claims, losses, diminution of value, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements and expenses incurred in the investigation or defense of any of the same or in asserting, preserving or enforcing any of their respective rights hereunder (the "Indemnified Liabilities"), incurred by such Indemnified Party resulting from the Indemnitees or any of them as a result of, or arising out of, or relating to (ai) the execution, delivery, performance or enforcement of this Agreement, the other Operative Documents and any other instrument, certificate, document or agreement executed pursuant hereto by any of the Indemnitees or (ii) any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectivelycovenant, as appropriateagreement, as the “Indemnifying Party”) contained in this Agreement or in any other Transaction Document or (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in of the Company under this Agreement, any other Transaction Operative Document or any certificate delivered pursuant other instrument, certificate, document or agreement contemplated hereby to this Agreement or which the Company is a party. To the extent that the foregoing undertaking by the Company may be unenforceable for any other Transaction Documentreason, each such representation or warranty the Company shall be read without reference make the maximum contribution to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries the payment and satisfaction of this Section 4.1, each of whom may enforce the provisions of this Section 4.1Indemnified Liabilities which is permissible under applicable law.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantor will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or the Exchange Act Reports, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantor will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to the provisions of this Section 4.1, each Seller, severally and not jointly, The Company will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Memorandum or the Final Offering Memorandum, in each case as amended or supplemented, any Issuer Free Writing Communication (including reasonable legalwith limitation, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement Supplemental Marketing Material) or any General Solicitation Communication, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other Transaction Document) (collectively, “Losses”) expenses reasonably incurred by such Indemnified Party resulting in connection with investigating, or defending against any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from (a) any breach of such documents in reliance upon and in conformity with written information furnished to the Company by or on behalf of any representation Purchaser through the Representatives specifically for use therein, it being understood and warranty agreed that the only such information consists of any Seller or Sellers (hereinafter referred to singly or collectively, the information described as appropriate, as the “Indemnifying Party”) contained such in this Agreement or in any other Transaction Document or subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, Guarantor will jointly and severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Preliminary Offering Memorandum or the Final Offering Memorandum, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or arise out of or are based upon the omission or alleged omission of 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, and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (a) whether or not such Indemnified Party is a party thereto), whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantor will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Issuer and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantors will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or the Additional Issuer Information, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating or defending against any loss, claim, damage, liability or action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Issuer and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuer by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, Guarantors will jointly and severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Preliminary Offering Memorandum or the Final Offering Memorandum, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or arise out of or are based upon the omission or alleged omission of 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, and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (a) whether or not such Indemnified Party is a party thereto), whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, Guarantors will jointly and severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting any Exchange Act Report or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representative specifically for use therein, it being understood and agreed that the only such information consists of the information furnished by any Purchaser described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1Guarantors will, each Sellerjointly and severally, severally and not jointly, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, Preliminary Prospectus or the Prospectus, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwithout limitation, consultantany Supplemental Marketing Material) or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, accounting in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representative specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Issuers and the provisions of this Section 4.1Guarantors, each Seller, severally jointly and not jointlyseverally, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting any General Solicitation Communication or Exchange Act Reports, or (ii) any omission or alleged omission of a material fact, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Issuers and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuers by the Representative specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantors will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting or the Exchange Act Reports, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to the provisions In consideration of each Purchaser's execution and delivery of this Section 4.1Agreement and making the Loans and in addition to all of the Corporation's other obligations under this Agreement and the other Operative Documents, each Sellerthe Corporation shall defend, severally and not jointlyprotect, will indemnify and hold the Investor harmless each Purchaser, each other holder of Purchaser Securities and each Person, if any, who controls any Purchaser within the meaning of its respective Section 15 of the Securities Act or Section 20 of the Exchange Act, and all of their officers, directors, Affiliatesemployees and agents (including, agents and employees (eachwithout limitation, an “Indemnified Party”) harmless from any and all out-of-pocket loss, Liability, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under those retained in connection with the transactions contemplated by this Agreement or any other Transaction DocumentAgreement) (collectively, “Losses”the "Indemnitees") from and against any and all actions, causes of action, suits, claims, losses, diminution of value, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements and expenses incurred in the investigation or defense of any of the same or in asserting, preserving or enforcing any of their respective rights hereunder (the "Indemnified Liabilities"), incurred by such Indemnified Party resulting from the Indemnitees or any of them as a result of, or arising out of, or relating to (ai) the execution, delivery, performance or enforcement of this Agreement, the other Operative Documents and any other instrument, certificate, document or agreement executed pursuant hereto by any of the Indemnitees or (ii) any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectivelycovenant, as appropriateagreement, as the “Indemnifying Party”) contained in this Agreement or in any other Transaction Document or (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in of the Corporation under this Agreement, any other Transaction Operative Document or any certificate delivered pursuant other instrument, certificate, document or agreement contemplated hereby to this Agreement or which the Corporation is a party. To the extent that the foregoing undertaking by the Corporation may be unenforceable for any other Transaction Documentreason, each such representation or warranty the Corporation shall be read without reference make the maximum contribution to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries the payment and satisfaction of this Section 4.1, each of whom may enforce the provisions of this Section 4.1Indemnified Liabilities which is permissible under applicable law.

Indemnification of Purchasers. Subject From and after the Closing, Xxxx Xxxxxxx, Xxxx Poor and Xxxxxxx Xxxxxx (the "Indemnifying Shareholders"), severally, shall indemnify the Purchasers, the Acquired Companies and their respective directors, officers, employees, Affiliates, stockholders, agents, attorneys, representatives, successors and permitted assigns (collectively, the "Purchaser Indemnitees"), against and hold the Purchaser Indemnitees harmless from: (a) any Losses based upon, resulting from, arising out of, caused by or in connection with the failure of, any inaccuracy in, or breach of, any of the representations and warranties in Article 3 or in Article 4 to be true and correct on the date hereof or the Closing Date; (b) any Losses based upon, resulting from, arising out of, caused by or in connection with any breach or nonperformance of any covenant, agreement or obligation of the Acquired Companies, Sellers or Sellers’ Representative in this Agreement; (c) notwithstanding any disclosure contained herein or otherwise known to the Purchaser Indemnitees, Losses based on, resulting from, arising out, caused by or in connection with (i) any Taxes payable by any Acquired Companies with respect to any Pre-Closing Tax Period or for the Straddle Period, to the extent allocable or attributable to the portion of such period beginning before or ending on the Closing Date, (ii) any liability of any Acquired Companies for Taxes of another Person (for example, by reason of transferee liability), (iii) any transfer Taxes for which Sellers are liable under this Agreement, or (iv) any Taxes of any Acquired Companies that are attributable to the Taxes of any member of an affiliated, consolidated, combined or unitary group (other than any of the Acquired Companies) of which any Acquired Companies is or was a member on or prior to the Closing Date; or (d) any Losses based upon, resulting from, arising out of, caused by or in connection with any failure of Sellers to comply with the provisions of this Section 4.1, each Seller, severally and not jointly, will indemnify and hold the Investor and each of its respective officers, directors, Affiliates, agents and employees (each, an “Indemnified Party”) harmless from any and all out-of-pocket loss, Liability, claim, charge, assessed interest, judgment, fine, penalty, damage, fee or expense (including reasonable legal, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) incurred by such Indemnified Party resulting from (a) any breach of any representation and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or in any other Transaction Document or (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1Article 9.

Indemnification of Purchasers. Subject to The Issuers and the provisions of this Section 4.1Guarantors, each Seller, severally jointly and not jointlyseverally, will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, any Issuer Free Writing Communication (including reasonable legalwith limitation, consultantany Supplemental Marketing Material), accounting any General Solicitation Communication or Exchange Act Reports, or (ii) any omission or alleged omission of a material fact, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement or any other Transaction Document) (collectively, “Losses”) reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Issuers and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuers by the Representative specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.1, each Seller, severally and not jointly, Guarantors will indemnify and hold the Investor harmless each Purchaser, its officers, employees, agents, partners, members, directors and its affiliates and each person, if any, who controls such Purchaser within the meaning of its respective officers, directors, Affiliates, agents and employees Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Party”) harmless from ), against any and all out-of-pocket losslosses, Liabilityclaims, claimdamages or liabilities, chargejoint or several, assessed interestto which such Indemnified Party may become subject, judgmentunder the Securities Act, finethe Exchange Act, penaltyother Federal or state statutory law or regulation or otherwise, damageinsofar as such losses, fee claims, damages or expense liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, any Issuer Free Writing Communication (including reasonable legalwith limitation, consultant, accounting and other professional fees and expenses and including any mitigation cost and any cost of determining that there has been a breach under this Agreement Supplemental Marketing Material) or any General Solicitation Communication, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other Transaction Document) (collectively, “Losses”) expenses reasonably incurred by such Indemnified Party resulting from in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) whether threatened or commenced and in connection with the enforcement of this provision with respect to any breach of any representation the above as such expenses are incurred; provided, however, that the Company and warranty of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) contained in this Agreement or Guarantors will not be liable in any other Transaction Document such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser through Credit Suisse specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in subsection (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement contemplated hereby or thereby (unless such action is based upon a breach of the Investor’s representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). For purposes of determining the amount of Losses incurred with respect to a breach of any representation or warranty contained in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifier. The Indemnified Parties shall be third party beneficiaries of this Section 4.1, each of whom may enforce the provisions of this Section 4.1below.

Indemnification of Purchasers. Subject to the provisions of this Section 4.14.9, in consideration of each SellerPurchaser's execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the Company's other obligations under the Transaction Documents, severally and not jointlythe Company will indemnify, will indemnify protect and hold the Investor Purchasers and each of its respective their directors, officers, directorsshareholders, Affiliatesmembers, partners, employees and direct or indirect investors and any of the foregoing Persons' agents and employees or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (each, an “Indemnified a "Purchaser Party”") harmless from any and all out-of-pocket losslosses, Liabilityliabilities, claimobligations, chargeclaims, assessed interestcontingencies, judgmentdamages, fineactions, penaltycauses of action, damagesuits, fee or expense penalties, fees, costs and expenses, (irrespective of whether any such Purchaser Party is a party to the action for which indemnification hereunder is sought), including all judgments, amounts paid in settlements, court costs and reasonable legal, consultant, accounting and other professional attorneys' fees and expenses and including costs of investigation (collectively, the "Indemnified Liabilities") that any mitigation cost and such Purchaser Party may suffer or incur as a result of, arising out or, or relating to (a) any cost misrepresentation or breach of determining that there has been a breach under this Agreement any representation or warranty made by the Company in the Transaction Documents or any other Transaction Document) certificate, instrument or document contemplated hereby or thereby, (collectively, “Losses”) incurred by such Indemnified Party resulting from (ab) any breach of any representation and warranty covenant, agreement or obligation of any Seller or Sellers (hereinafter referred to singly or collectively, as appropriate, as the “Indemnifying Party”) Company contained in this Agreement the Transaction Documents or in any other Transaction Document certificate, instrument or (b) any failure by the Indemnifying Party to perform any covenant or agreement hereunder, under any other Transaction Document or under any agreement document contemplated hereby or thereby or (unless c) any cause of action, suit or claim brought or made against such Purchaser Party by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, or (iii) the status of such Purchaser or holder of the Securities as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents (unless, and only to the extent that, such action is based solely upon a breach of the Investor’s such Purchaser's representations, warranties or covenants under this Agreement or any violations by the Investor of state or federal securities laws Transaction Documents or any conduct by the Investor such Purchaser which constitutes fraud, gross negligence, negligence or willful misconduct or malfeasancemisconduct). For purposes To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of determining each of the amount Indemnified Liabilities which is permissible under applicable law. If any action shall be brought against any Purchaser Party in respect of Losses incurred which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with respect counsel of its own choosing reasonably acceptable to such Purchaser. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel reasonably acceptable to such Purchaser, or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any representation of the representations, warranties, covenants or warranty contained agreements made by the Purchasers in this Agreement, any other Transaction Document or any certificate delivered pursuant to this Agreement or any in the other Transaction Document, each such representation or warranty shall be read without reference to “materiality” or “Material Adverse Effect” qualifierDocuments. The Indemnified Parties Company shall be third not, without the prior written consent of the applicable Purchaser Party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the applicable Purchaser Party of a release from all liability in respect to such Claim (as defined in the Registration Rights Agreement) or litigation. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the Company party beneficiaries of any liability to the Purchase Party under this Section 4.14.9, each of whom may enforce except to the provisions of this Section 4.1extent that the Company is prejudiced in its ability to defend such action.