Common use of Indemnification of the Holder Clause in Contracts

Indemnification of the Holder. Subject to the conditions set forth below, in connection with any registration of the Shares pursuant to this Section 4, the Company agrees to indemnify and hold harmless the Purchaser, any underwriter for the Company or acting on behalf of the Purchaser and each person, if any, who controls the Purchaser, within the meaning of Section 15 of the Securities Act, as follows: (i) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonable incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the Securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the company by or on behalf of the Purchaser expressly for use in connection therewith or arising out of any action or inaction of the Purchaser; (ii) Subject to the provision contained in Subsection 4.6 (i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company; (iii) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such seller, underwriter or any such controlling person unless the Company shall be notified, by letter or by facsimile confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such claim, but if the company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such sellers, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counsel.

Indemnification of the Holder. Subject to the conditions set forth below, in connection with any registration of the Warrant Shares pursuant to this Section 4subsections (a) through (f) hereof, the Company Corporation agrees to indemnify and hold harmless the PurchaserHolder selling securities pursuant to said subsections, any underwriter for the Company Corporation or acting on behalf of the Purchaser Holder selling securities and each person, if any, who controls the PurchaserHolder, within the meaning of Section 15 of the Securities Act, as follows: (i) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company Corporation or based upon written information furnished by the Company Corporation filed in any jurisdiction in order to qualify the CompanyCorporation's securities under the Securities securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company Corporation in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section subsection (j)(i) shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the company Corporation by or on behalf of the Purchaser Holder expressly for use in connection therewith or arising out of any action omission of a material fact required to be stated therein or inaction of necessary to make the Purchaserstatements therein not misleading; (ii) Subject to the provision proviso contained in Subsection 4.6 subsection (ij)(i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company;Corporation; and (iii) In no case shall the Company Corporation be liable under this indemnity agreement with respect to any claim made against such seller, underwriter or any such controlling person unless the Company Corporation shall be notified, by letter or by facsimile telegram confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the CompanyCorporation, if prejudicial in any material respect to the CompanyCorporation's ability to defend such claim, shall relieve the Company Corporation from its liability to the indemnified person under this Section 4subsection (j), but only to the extent that the Company Corporation was prejudiced. The failure to so notify the Company Corporation shall not relieve the Company Corporation from any liability which it may have otherwise than on account of this indemnity agreement. The Company Corporation shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such claim, but if the company Corporation elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in any suit so brought. In the event the Company Corporation elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company Corporation or that representation of such sellers, underwriters or controlling persons by counsel for the Company Corporation presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company Corporation shall bear the fees, expenses and other costs of such separate counsel.

Indemnification of the Holder. Subject to the conditions set forth belowDHAC shall indemnify against, in connection with any registration of the Shares pursuant to this Section 4, the Company agrees to indemnify and hold harmless from, the PurchaserHolder and its Related Parties, any underwriter for the Company or acting on behalf of the Purchaser and each person, if any, Person who controls the Purchaser, any of them (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), as follows: and their agents, contractors, trustees, representatives and advisors (ieach, a “the Holder”) Against any and all loss, claim, damage and expense whatsoever arising out Losses that the Holder may suffer or incur as a result of or based upon relating to (includinga) the administration, but not limited to, performance or enforcement by the Holder of any and all expense whatsoever reasonable incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement)Transaction Documents or consummation of any transaction described therein, (b) the registration statement existence of, perfection of, a Lien upon or the prospectus (as from time to time amended and supplemented), sale or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the Securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleadingcollection of, or any other violation damage, Loss, failure to return or other realization upon any collateral, (c) the failure of applicable federal any Company Party or state statutory any of their Related Parties (whether directly or regulatory requirements through their agents, contractors, trustees, representatives and advisors) to observe, perform or limitations relating discharge any of the covenants or duties under any of the Transaction Documents, (d) any Proceeding, whether or not the Holder is a party thereto with respect to action any of the Transaction Documents or inaction the transactions contemplated therein. Additionally, if any Taxes (excluding Taxes imposed upon or measured solely by the net income of the recipient of any payment made under any Transaction Document, but including any intangibles tax, stamp tax, recording tax or franchise tax) shall be imposed on any Company in Party or the course Holder, whether or not lawfully payable, on account of preparing, filingthe execution or delivery of this Agreement, or implementing the execution, delivery, issuance or recording of any of the other Transaction Documents, or the creation or repayment of any of obligations hereunder, by reason of any applicable Regulations now or hereafter in effect, DHAC shall pay (or shall promptly reimburse the Holder for the payment of) all such registered offering; providedTaxes, howeverincluding any interest, that penalties, expenses and other Losses with respect thereto), and will indemnify and hold the indemnity agreement contained Holder Parties harmless from and against all Losses arising therefrom or in this section connection therewith. The foregoing indemnities shall not apply to any loss, claim, damage, liability Losses incurred by the Holder as a result of its own gross negligence or action arising out willful misconduct as determined by a final non-appealable order of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing a court of competent jurisdiction. Notwithstanding anything to the company by or on behalf contrary in any Transaction Document, the obligations of the Purchaser expressly for use in connection therewith or arising out of any action or inaction of the Purchaser; (ii) Subject to the provision contained in Subsection 4.6 (i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company; (iii) In no case shall the Company be liable under this indemnity agreement DHAC with respect to any claim made against such seller, underwriter each indemnity given by it in this Agreement or any such controlling person unless of the Company other Transaction Documents in favor of the Holder Parties shall survive the payment in full of the Note and the termination of this Agreement. The indemnification required by this Section 4.9 shall be notified, made by letter or by facsimile confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis periodic payments of the claimamount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company indemnification contained herein shall be entitled in addition to participate at its own expense in any cause of action or similar right of the defense of Holder against any suit brought to enforce Company Party or others and any such claim, but if the company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in liabilities any suit so brought. In the event the Company elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there Party may be available subject to them pursuant to any defense or counterclaim different than those available to the Company or that representation of such sellers, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counselRegulation.

Indemnification of the Holder. Subject to the conditions set ------------------------------ forth below, in connection with any registration of the Shares securities pursuant to this Section 43.1 hereof, the Company agrees to indemnify and hold harmless the Purchaser, any underwriter for the Company or acting on behalf of the Purchaser and each person, if any, who controls the Purchaser, within the meaning of Section 15 of the Securities Act, Holder as follows: (ia) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the final prospectus (as from time to time amended and supplemented)supplemented if the Company shall have filed with the SEC any amendment thereof or supplement thereto) if used within the period during which the Company is required to keep the registration statement or prospectus current, or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the Securities securities laws thereof, ; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, ; or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section Section 3.5(a) shall not apply to any loss, claim, damage, liability or action arising out of or based upon (i) any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the company Company by or on behalf of the Purchaser Holder expressly for use in connection therewith therewith, (ii) the Holder's failure to deliver a prospectus relating to such registration, if the Company had previously furnished copies thereof, or arising out of any (iii) the Holder's failure to deliver an amended or supplemental prospectus after the Company had previously provided the notice and the supplemental or amended prospectus as specified in Section 3.4 if such loss, claim, damage, liability or action or inaction of the Purchaserwould not have arisen had such delivery occurred; (iib) Subject to the provision proviso contained in Subsection 4.6 (ithe last sentence of Section 3.5(a) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the CompanyCompany and no indemnity shall inure to the benefit of the Holder if the person asserting the claim failed to receive a copy of the final prospectus at or prior to the written confirmation of the sale of shares of Common Stock to such person if the untrue statement or omission had been corrected in such final prospectus and the failure to receive such final prospectus is not a necessary element of such person's claim; (iiic) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such seller, underwriter or any such controlling person the Holder unless the Company shall be notified, by letter or by facsimile telegram confirmed by letter, of any claim made or action commenced against it, reasonably promptly (but in any event within 20 days of receipt of such personsclaim or, promptly in the event that any summons or other service of process requires a responsive pleading within 30 days or less time, within ten days after receipt of such person summons or other process) after the Holder shall have received notice of such claim or been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company it from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such claim, but if the company Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided that such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in any suit so broughtHolder. In the event the Company elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, Holder shall, after the date they are the Holder is notified of such election, bear the fees and expenses of any counsel thereafter retained by them, the Holder as well as any other expenses thereafter incurred by them the Holder in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such sellers, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, fees and expenses and other costs of any such separate counselcounsel retained by the Holder if the counsel representing the Company has a conflict of interest (which is not waived) with the Holder which would prohibit such counsel from representing the Holder.

Indemnification of the Holder. Subject to the conditions set forth below, in connection with any registration of the Shares pursuant to this Section 4, the Company agrees to indemnify and hold harmless the Purchaser, any underwriter for the Company or acting on behalf of the Purchaser and each person, if any, who controls the Purchaser, within the meaning of Section 15 of the Securities Act, as follows: (i) Against any and all loss, claim, damage and expense whatsoever arising out of or of, based upon or resulting from (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the Securities securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the company Company by or on behalf of the Purchaser expressly for use in connection therewith or arising out of any action or inaction of the Purchaser; (ii) Subject to the provision proviso contained in Subsection 4.6 (i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company;; and (iii) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such seller, underwriter or any such controlling person unless the Company shall be notified, by letter or by facsimile confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such claim, but if the company Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such sellers, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counsel.

Indemnification of the Holder. Subject to the conditions set forth below, in connection with any registration of the Shares pursuant to this Section 4, the Company agrees to indemnify and hold harmless the Purchaser, any underwriter for the Company or acting on behalf of the Purchaser and each person, if any, who controls the Purchaser, within the meaning of Section 15 of the Securities Act, as follows: (i) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the Securities securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the company Company by or on behalf of the Purchaser expressly for use in connection therewith or arising out of any action or inaction of the Purchaser; (ii) Subject to the provision proviso contained in Subsection 4.6 (i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company;; and (iii) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such seller, underwriter or any such controlling person unless the Company shall be notified, by letter or by facsimile confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such claim, but if the company Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such sellers, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counsel.

Indemnification of the Holder. Subject to the conditions set forth below, in connection with any registration of the Conversion Shares pursuant to this Section 4subsections (a) through (f) hereof, the Company agrees to indemnify and hold harmless the PurchaserHolder selling securities pursuant to said subsections, any underwriter for the Company or acting on behalf of the Purchaser Holder selling securities and each person, if any, who controls the PurchaserHolder, within the meaning of Section 15 of the Securities Act, as follows: (i) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the Securities securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section subsection (j)(i) shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the company Company by or on behalf of the Purchaser Lender and/or the Holder expressly for use in connection therewith or arising out of any action omission of a material fact required to be stated therein or inaction of necessary to make the Purchaserstatements therein not misleading; (ii) Subject to the provision proviso contained in Subsection 4.6 subsection (ij)(i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonable reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company;; and (iii) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such seller, underwriter or any such controlling person unless the Company shall be notified, by letter or by facsimile telegram confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4subsection (j), but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such claim, but if the company Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the sellers or controlling persons, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and retain such counsel, the sellers, underwriter or controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the sellers, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such sellers, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such sellers, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counsel.