Common use of Indemnification by the Placement Agents Clause in Contracts

Indemnification by the Placement Agents. The Placement Agent shall indemnify and hold harmless the Company and the Company’s directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” and each a “Company Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue statement of a material fact contained in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, or (ii) the omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company through the Placement Agent expressly for use therein, it being understood and agreed upon that the only such Placement Agent’s Information so furnished consists of the following information in the Prospectus: the first paragraph under “Commissions and Expenses,” the first paragraph under “Electronic Distribution,” the information under “Regulation M Restrictions” and the information under “Passive Market Making” in each case, under the caption “Plan of Distribution.” The Placement Agent shall reimburse the Company for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity by the Placement Agent under this Section 7(b) exceed the total discount and commission received by the Placement Agent in connection with the offering of the Units.

Indemnification by the Placement Agents. The Each Placement Agent shall indemnify Agent, severally and not jointly, agrees to indemnify, defend and hold harmless the Company and Company, the Operating Partnership, the Company’s directors, its the Company’s officers who that signed the Registration Statement and each personStatement, if any, any person who controls the Company or the Operating Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” Act, from and each a “Company Indemnified Party”) against any loss, claimexpense, damageliability, expense damage or liability whatsoever claim (including the reasonable cost of investigation) which, jointly or severally, the Company, the Operating Partnership or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party person may become subject, incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation damage or proceeding claim arises out of or is based upon (i1) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any preliminary prospectusamendment thereof), any Issuer Free Writing Prospectus, any “issuer information” Prospectus that the Company has filed or was required to be filed pursuant to Rule 433(d) of file with the Securities Act RegulationsCommission, any Registration Statement or the Prospectus, (2) any omission or in any amendment or supplement thereto, or (ii) the alleged omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus or the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the insofar as such untrue statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, Issuer Free Writing Prospectus or Prospectus in reliance upon and in conformity with written information relating to such Placement Agent furnished in writing by such Placement Agent to the Company through expressly stating that such information is intended for use in the Registration Statement (or any amendment thereto), the Issuer Free Writing Prospectus (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 10(b) shall be in addition to any liabilities that such Placement Agent expressly for use thereinmay otherwise have. If any action is brought against the Company, it being understood and agreed upon that the only Operating Partnership or any such person in respect of which indemnity may be sought against such Placement Agent’s Information so furnished consists Agent pursuant to the foregoing paragraph, the Company, the Operating Partnership or such person shall promptly notify such Placement Agent in writing of the following information in the Prospectus: the first paragraph under “Commissions institution of such action (enclosing a copy of all papers served) and Expenses,” the first paragraph under “Electronic Distribution,” the information under “Regulation M Restrictions” and the information under “Passive Market Making” in each case, under the caption “Plan of Distribution.” The such Placement Agent shall reimburse if it so elects assume the Company for defense of such action, including the employment of counsel and payment of expenses; provided, however, that any legal failure or other expenses reasonably incurred delay to so notify such Placement Agent will not relieve such Placement Agent of any obligation hereunder, except to the extent that their ability to defend is materially prejudiced by such party failure or delay. The Company, the Operating Partnership or such person shall have the right to employ its own counsel in connection with investigating or preparing to defend or defending against or appearing as third party witness in connection with any such losscase, claim, damage, liability, action, investigation or proceeding, as such but the fees and expenses are incurred. Notwithstanding of such counsel shall be at the provisions expense of this Section 7(b)the Company, the Operating Partnership or such person unless the employment of such counsel shall have been authorized in no event shall any indemnity writing by the Placement Agent under this Section 7(b) exceed the total discount and commission received by the such Placement Agent in connection with the offering defense of such action or such Placement Agent shall not have employed counsel reasonably satisfactory to the Company, the Operating Partnership or such person, as the case may be, to have charge of the Unitsdefense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to (in which case such Placement Agent shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by such Placement Agent and paid as incurred (it being understood, however, that such Placement Agent shall not be liable for the expenses of more than one separate firm of attorneys in any one action or series of related actions in the same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, such Placement Agent shall not be liable for any settlement of any such claim or action effected without its written consent.

Indemnification by the Placement Agents. The Placement Agent shall indemnify Agents agree to indemnify, defend and hold harmless the Company and the Company’s directors, its directors and officers who that signed the Registration Statement and each personStatement, if any, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” Act, from and each a “Company Indemnified Party”) against any loss, claimexpense, damageliability, expense damage or liability whatsoever claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party person may become subject, incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation damage or proceeding claim arises out of or is based upon (i1) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any preliminary prospectusamendment thereof), any Issuer Free Writing Prospectus, any “issuer information” Prospectus that the Company has filed or was required to be filed pursuant to Rule 433(d) of file with the Securities Act RegulationsCommission, any Registration Statement or the Prospectus, (2) any omission or in any amendment or supplement thereto, or (ii) the alleged omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus or the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the insofar as such untrue statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, Issuer Free Writing Prospectus or Prospectus in reliance upon and in conformity with written information furnished in writing by the Placement Agents to the Company through the Placement Agent expressly for use therein, it being understood and agreed upon that the only such Placement Agent’s Information so furnished consists . The names of the following information Placement Agents set forth in the Prospectus: the first paragraph under “Commissions and Expenses,” on the first paragraph under “Electronic Distribution,” cover of the Prospectus Supplement constitute the only information under “Regulation M Restrictions” and furnished by or on behalf of the information under “Passive Market Making” in each case, under the caption “Plan of Distribution.” The Placement Agent shall reimburse Agents to the Company for the purposes of Section 5(a)(1) and this Section 10. The indemnity agreement set forth in this Section 10(b) shall be in addition to any legal liabilities that the Placement Agents may otherwise have. If any action is brought against the Company or other expenses reasonably incurred any such person in respect of which indemnity may be sought against the Placement Agents pursuant to the foregoing paragraph, the Company or such person shall promptly notify the Placement Agents in writing of the institution of such action and the Placement Agents shall if they so elect assume the defense of such action, including the employment of counsel and payment of expenses; provided, however, that any failure or delay to so notify the Placement Agents will not relieve the Placement Agents of any obligation hereunder, except to the extent that their ability to defend is materially prejudiced by such party failure or delay. The Company or such person shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing by the Placement Agents in connection with investigating the defense of such action or preparing the Placement Agents shall not have employed counsel reasonably satisfactory to defend the Company or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceedingperson, as the case may be, to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to (in which case the Placement Agents shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity be borne by the Placement Agent under this Section 7(b) exceed the total discount Agents and commission received by paid as incurred (it being understood, however, that the Placement Agent Agents shall not be liable for the expenses of more than one separate firm of attorneys in connection with any one action or series of related actions in the offering same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, the Placement Agents shall not be liable for any settlement of the Unitsany such claim or action effected without its written consent.

Indemnification by the Placement Agents. The Placement Agent shall indemnify and hold harmless the Company and the Company’s directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” and each a “Company Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue statement of a material fact contained in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, or (ii) the omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information”, any Prospectus or any amendment or supplement thereto, in light of the circumstances in which they are made, but in each case only to the extent that the untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company through by the Placement Agent expressly for use therein, it being understood and agreed upon that the only such Placement Agent’s Information so furnished consists of the following information in the Prospectus: the first paragraph under “Commissions and Expenses,” the first paragraph under “Electronic Distribution,” the information under “Regulation M Restrictions” and the information under “Passive Market Making” in each case, under the caption “Plan of Distribution.” The Placement Agent shall reimburse the Company for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity by the Placement Agent under this Section 7(b) exceed the total discount and commission received by the Placement Agent in connection with the offering of the UnitsSecurities.

Indemnification by the Placement Agents. The Placement Agent shall indemnify Agents agree to indemnify, defend and hold harmless the Company and Company, the Manager, the Company’s directors, its the Company’s officers who that signed the Registration Statement and each personStatement, if any, any person who controls the Company or the Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” Act, from and each a “Company Indemnified Party”) against any loss, claimexpense, damageliability, expense damage or liability whatsoever claim (including the reasonable cost of investigation) which, jointly or severally, the Company, the Manager or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party person may become subject, incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation damage or proceeding claim arises out of or is based upon (i1) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any preliminary prospectusamendment thereof), any Issuer Free Writing Prospectus, any “issuer information” Prospectus that the Company has filed or was required to be filed pursuant to Rule 433(d) of file with the Securities Act RegulationsCommission, any Registration Statement the General Disclosure Package or the Prospectus, (2) any omission or in any amendment or supplement thereto, or (ii) the alleged omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the insofar as such untrue statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, Issuer Free Writing Prospectus or Prospectus in reliance upon and in conformity with written information furnished in writing by the Placement Agents to the Company through the Placement Agent expressly for use therein, it being understood . The names of the Placement Agents appearing in the Prospectus shall constitute the only information furnished by or on behalf of the Placement Agents to the Company for the purposes of Section 5(a)(1) and agreed upon this Section 10. The indemnity agreement set forth in this Section 10(c) shall be in addition to any liabilities that the only Placement Agents may otherwise have. If any action is brought against the Company, the Manager or any such person in respect of which indemnity may be sought against the Placement Agent’s Information so furnished consists Agents pursuant to the foregoing paragraph, the Company, the Manager or such person shall promptly notify the Placement Agents in writing of the following information in the Prospectus: the first paragraph under “Commissions and Expenses,” the first paragraph under “Electronic Distribution,” the information under “Regulation M Restrictions” institution of such action and the information under “Passive Market Making” Placement Agents shall if they so elect assume the defense of such action, including the employment of counsel and payment of expenses; provided, however, that any failure or delay to so notify the Placement Agents will not relieve the Placement Agents of any obligation hereunder, except to the extent that their ability to defend is materially prejudiced by such failure or delay. The Company, the Manager or such person shall have the right to employ its own counsel in each any such case, under but the caption “Plan fees and expenses of Distribution.” The such counsel shall be at the expense of the Company, the Manager or such person unless the employment of such counsel shall have been authorized in writing by the Placement Agents in connection with the defense of such action or such Placement Agent shall reimburse not have employed counsel reasonably satisfactory to the Company for any legal Company, the Manager or other expenses reasonably incurred by such party in connection with investigating or preparing to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceedingperson, as the case may be, to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to (in which case the Placement Agents shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity be borne by the Placement Agent under this Section 7(b) exceed the total discount Agents and commission received by paid as incurred (it being understood, however, that the Placement Agent Agents shall not be liable for the expenses of more than one separate firm of attorneys in connection with any one action or series of related actions in the offering same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, the Placement Agents shall not be liable for any settlement of the Unitsany such claim or action effected without its written consent.

Indemnification by the Placement Agents. The Each Placement Agent shall indemnify agree to indemnify, severally and not jointly, defend and hold harmless the Company and Company, the Company’s directors, its the Company’s officers who that signed the Registration Statement and each personStatement, if any, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” Act, from and each a “Company Indemnified Party”) against any loss, claimexpense, damageliability, expense damage or liability whatsoever claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party person may become subject, incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation damage or proceeding claim arises out of or is based upon (i1) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any preliminary prospectusamendment thereof), any Issuer Free Writing Prospectus, any “issuer information” Prospectus that the Company has filed or was required to be filed pursuant to Rule 433(d) of file with the Securities Act RegulationsCommission, any Registration Statement or the Prospectus, (2) any omission or in any amendment or supplement thereto, or (ii) the alleged omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus or the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the insofar as such untrue statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, Issuer Free Writing Prospectus or Prospectus in reliance upon and in conformity with written information furnished in writing by the Placement Agents to the Company through the Placement Agent expressly for use therein, it being understood and agreed upon . The indemnity agreement set forth in this Section 10(b) shall be in addition to any liabilities that the only Placement Agents may otherwise have. If any action is brought against the Company or any such person in respect of which indemnity may be sought against the Placement Agent’s Information so furnished consists Agents pursuant to the foregoing paragraph, the Company or such person shall promptly the Placement Agents in writing of the following information in the Prospectus: the first paragraph under “Commissions and Expenses,” the first paragraph under “Electronic Distribution,” the information under “Regulation M Restrictions” institution of such action and the information under “Passive Market Making” Placement Agents shall if it so elects assume the defense of such action, including the employment of counsel and payment of expenses; provided, however, that any failure or delay to so notify the Placement Agents will not relieve the Placement Agents of any obligation hereunder, except to the extent that their ability to defend is materially prejudiced by such failure or delay. The Company or such person shall have the right to employ its own counsel in each any such case, under but the caption “Plan fees and expenses of Distribution.” The Placement Agent such counsel shall reimburse be at the expense of the Company for any legal or other expenses reasonably incurred such person unless the employment of such counsel shall have been authorized in writing by such party the Placement Agents in connection with investigating the defense of such action or preparing the Placement Agents shall not have employed counsel reasonably satisfactory to defend the Company or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceedingperson, as the case may be, to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to (in which case the Placement Agents shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity be borne by the Placement Agent under this Section 7(b) exceed the total discount Agents and commission received by paid as incurred (it being understood, however, that the Placement Agents shall not be liable for the expenses of more than one separate firm of attorneys in any one action or series of related actions in the same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, no Placement Agent in connection with the offering shall not be liable for any settlement of the Unitsany such claim or action effected without its written consent.

Indemnification by the Placement Agents. The Placement Agent shall indemnify Agents agree, severally and not jointly, to indemnify, defend and hold harmless the Company and Company, the Company’s directors, its the Company’s officers who that signed the Registration Statement and each personStatement, if any, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” Act, from and each a “Company Indemnified Party”) against any loss, claimexpense, damageliability, expense damage or liability whatsoever claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any action, investigation or proceeding in respect thereof), to which such Company Indemnified Party person may become subject, incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation damage or proceeding claim arises out of or is based upon (i1) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any preliminary prospectusamendment thereof), any Issuer Free Writing Prospectus, any “issuer information” Prospectus that the Company has filed or was required to be filed pursuant to Rule 433(d) of file with the Securities Act RegulationsCommission, any Registration Statement or the Prospectus, (2) any omission or in any amendment or supplement thereto, or (ii) the alleged omission to state in any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Securities Act Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus or the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the insofar as such untrue statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, Issuer Free Writing Prospectus or Prospectus in reliance upon and in conformity with written information furnished in writing by the Placement Agents to the Company through the Placement Agent expressly for use therein, it being understood and agreed upon that the only such Placement Agent’s Information so furnished consists of the following information . The statements set forth in the Prospectus: the first eighth paragraph under “Commissions and Expenses,” the first paragraph under “Electronic Distribution,” the information under “Regulation M Restrictions” and the information under “Passive Market Making” in each case, under the caption “Plan of Distribution.” The in the Equity Distribution Prospectus (to the extent such statements relate to the Placement Agent shall reimburse Agents) constitute the only information furnished by or on behalf of the Placement Agents to the Company for the purposes of Section 5(a)(1) and this Section 10. The indemnity agreement set forth in this Section 10(b) shall be in addition to any legal liabilities that the Placement Agents may otherwise have. If any action is brought against the Company or other expenses reasonably incurred any such person in respect of which indemnity may be sought against the Placement Agents pursuant to the foregoing paragraph, the Company or such person shall promptly notify the Placement Agents in writing of the institution of such action and the Placement Agents shall if they so elects assume the defense of such action, including the employment of counsel and payment of expenses; provided, however, that any failure or delay to so notify the Placement Agents will not relieve the Placement Agents of any obligation hereunder, except to the extent that its ability to defend is materially prejudiced by such party failure or delay. The Company or such person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing by the Placement Agents in connection with investigating the defense of such action or preparing the Placement Agents shall not have employed counsel reasonably satisfactory to defend the Company or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceedingperson, as the case may be, to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to (in which case the Placement Agents shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses are incurred. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity be borne by the Placement Agent under this Section 7(b) exceed the total discount Agents and commission received by paid as incurred (it being understood, however, that the Placement Agent Agents shall not be liable for the expenses of more than one separate firm of attorneys in connection with any one action or series of related actions in the offering same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, the Placement Agents shall not be liable for any settlement of the Unitsany such claim or action effected without its written consent.