Common use of By Fund Clause in Contracts

By Fund. The Fund agrees to indemnify and hold harmless the Dealer Manager and each Broker/Dealer and each person, if any, who controls the Dealer Manager or any Broker/Dealer within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all losses, liabilities, claims, damages and expenses whatsoever (including but not limited to attorneys' fees and any and all expense whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Act, the Exchange Act, or other Federal or state law or regulation, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in the Registration Statement or Notification for the registration of the Shares, as originally filed or any amendment thereof, or any related Preliminary Prospectus or the Prospectus, or any supplement thereto or amendment thereof, or any application document executed by the Fund filed or delivered in connection with the qualifications of the Shares for sale under any "blue sky law" or the listing of the Shares on any securities exchange, or (ii) arise out of or are based upon the omission or alleged omission to state in any of the foregoing a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that the Fund will not be liable in any such case to the extent but only to the extent that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Fund by or on behalf of the Dealer Manager or such Broker/Dealer through the Dealer Manager expressly for use therein as set forth in SECTION 5. This indemnity agreement will be in addition to any liability which the Fund may otherwise have including under this Agreement.