Common use of Expenses and Remedies Clause in Contracts

Expenses and Remedies. (a) Subject to paragraph (d), the Company agrees to pay the Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting and consulting fees of the Purchaser, incurred in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the Purchaser and its officers, directors, partners, employees, trustees and agents, each person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein or (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange Act; provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay or --------------------- reimburse the Purchaser Purchasers for (i) all of its reasonable legal counsel, accounting, environmental consulting and other out-of-pocket expenses, including reasonable outside legal, accounting fees and consulting fees expenses incurred by or on behalf of the Purchaser, incurred any Purchaser in connection with due diligence relating to, and the preparation, negotiation and execution of, this Agreement and the Related Documents and the consummation of all transactions contemplated herebyhereby and thereby, (ii) all costs, expenses and all costs and expenses reasonable legal fees relating to any future amendment amendments or supplement supplements to this Agreement or any of Related Document or the Securities Series C Preferred Stock and/or Series D Preferred Stock (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummatedconsummated and (iii) all costs, expenses and all costs and expenses reasonable legal fees of the Purchaser Purchasers relating to the enforcement against the Company of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligationRelated Documents. (b) The Company further agrees to indemnify and save harmless the each Purchaser and its officers, directors, partners, employees, trustees and agents, and each person who controls the such Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expensesexpenses (including, without limitation, reaso nable attorneys' fees, whether incurred in connection with a claim against the Company or a third party claim), damages or other liabilities (collectively, "Losses") resulting from any breach of any ------ representation, warranty, covenant or agreement set forth in this Agreement or any Related Document by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings brought by any third party arising out of the transactions contemplated hereby and thereby (other than such costs, expenses, damages or other liabilities Losses resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein in this Agreement or any Related Document or (ii) from the gross negligence or willful misconduct of such Purchaser or any of its respective officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange Act); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified Each party entitled to indemnification under this Section 13.10 6.9 (each, an "indemnified party") will, promptly after the receipt of notice of ----------------- the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company a party (each, an "indemnifying party") on ------------------ account of an indemnity agreement contained in this Section 13.106.9, notify the Company indemnifying party in writing of the commencement thereof. The omission of any indemnified party so to notify the Company indemnifying party of any such action shall not relieve the Company indemnifying party from any liability which it the indemnifying party may have to such indemnified party except to the extent the Company indemnifying party shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, indemnifying party pursuant to this Section 13.106.9. In case any such action shall be brought against any indemnified party and it shall notify the Company indemnifying party of the commencement thereof, the Company indemnifying party shall be entitled to participate therein and, to the extent that it the indemnifying party may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company indemnifying party to such indemnified party of its election so to assume the defense thereof, the Company indemnifying party will not be liable to such indemnified party under this Section 13.10 6.9 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Companyindemnifying party; provided, however, that (i) if the Company indemnifying party shall elect -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company indemnifying party and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Companyindemnifying party, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company indemnifying party shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, ; provided that the Company shall not be required obligated to pay the costsreasonable legal expenses of more than one firm of counsel for all indemnified parties in connection with any matter in respect of which indemnity is sought hereunder, expenses and fees referred except to in paragraph (a) the extent any indemnified party or parties reasonably shall have concluded that there may be a conflict of this Section 13.10interest between any indemnified parties or legal defenses available to such party or parties which are not available to the other indemnified parties or to the extent representation of all indemnified parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the Purchaser Purchasers for all of its their out-of-pocket expensesexpenses (not to exceed $300,000), including reasonable outside legal, accounting and consulting fees of the PurchaserPurchasers, incurred in connection with this Agreement and the consummation of all transactions contemplated hereby, and . The Company further agrees to pay the Purchasers all of their reasonable out-of-pocket costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser Purchasers relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the Purchaser Purchasers and its any of their officers, directors, partners, employees, trustees and agents, and each person who controls any of the Purchaser Purchasers within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the CompanyCompany and any claim relating to Indemnified Losses (as defined in the Acquisition Agreement)) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser Purchasers of any of its their agreements contained herein or (ii) from the gross negligence or willful misconduct of such Purchaser Purchasers or any of its their officers, directors, partners, employees or agents, or any person who controls such Purchaser Purchasers within the meaning of the Securities Act or the Exchange Act); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the each Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting legal and consulting fees of the Purchaser, incurred such Purchaser in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the each Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement Warrants or the Notes or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the each Purchaser and its respective officers, directors, partners, employees, trustees and agents, each person who controls the such Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein or herein, (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange ActAct or (iii) from an ERISA violation resulting from any action or inaction by such Purchaser, other than an ERISA violation resulting from a breach by the Company of this Agreement); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The An indemnified party under this Section 13.10 12.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.1012.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.1012.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10.reasonably

Expenses and Remedies. (a) Subject to paragraph (d), the Company agrees to pay the Purchaser for all of its out-of-pocket expenses, including reasonable outside legaloutxxxx xexxx, accounting xxxxxxxxxx and consulting fees of the Purchaser, incurred in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the Purchaser and its officers, directors, partners, employees, trustees and agents, each person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein or (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange Act; provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-of- pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10. 13.

Expenses and Remedies. (a) Subject to paragraph (d)Whether or not the Closing takes place, the Company agrees to pay the Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting costs and consulting fees of the Purchaser, expenses incurred in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal hereby shall be borne by the Company for party incurring such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummatedexpense, and all costs and expenses of except as set forth in the Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligationnext eight paragraphs. (b) The Company further agrees to indemnify and save harmless the Notwithstanding Section 13.09(a), if Purchaser and its officers, directors, partners, employees, trustees and agents, each person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of terminates this Agreement by the Company pursuant to Section 10.01(d), (including the breach of any covenant or representation or warranty made by the Companye) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (il) from the breach by such Purchaser of any of its agreements contained herein or (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange Act; provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make reimburse Purchaser for the reasonable out-of-pocket expenses (including reasonable fees and expenses of legal counsel) incurred by Purchaser in connection with this Agreement or the matters contemplated hereby up to a maximum contribution to of $4 million (such expenses, subject the payment foregoing maximum, "Purchaser's Expenses") and satisfaction shall pay Purchaser a termination fee of such indemnified liability which shall be permissible under applicable laws$25 million (the "Termination Fee"). (c) The indemnified party under this Notwithstanding Section 13.10 will13.09(a), promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect Closing does not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of to satisfy the condition set forth in Section 9.03(b), the Company shall pay Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunderExpenses. (d) Notwithstanding Section 13.09(a), if (i) the Company shall be entitled Closing does not occur prior to January 15, 1998 (other than as a refund result of (A) any breach by Purchaser of the underwriting deposit paid pursuant to the Fee Letterterms of this Agreement), and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay a Directories Transaction Proposal was made prior to January 15, 1998 and (iii) during the period ending 12 months after termination the Company for all consummates, becomes a party to or enters into an agreement relating to or publicly announces, a sale of its out-of-pocket expensesEquity Securities representing in excess of 20% of the Total Voting Power, including reasonable outside legal and accounting fees. Furtherthen promptly after the Company consummates such transaction, the Company shall pay Purchaser Purchaser's Expenses and the Termination Fee. (e) Notwithstanding Section 13.09(a), if the Company terminates this Agreement pursuant to Section 10.01(j) or (k), the Company shall pay Purchaser Purchaser's Expenses and the Termination Fee. (f) Notwithstanding Section 13.09(a), if Purchaser or the Company terminates this Agreement pursuant to Section 10.01(i), and during the period ending 12 months after termination the Company enters into an agreement with respect to an Alternative Company Proposal or Directories Transaction Proposal, the Company shall pay Purchaser Purchaser's Expenses and the Termination Fee; provided, however, that if the Company enters into an agreement with respect to an Alternative Company Proposal with Hilton Hotels Corporation, the termination fee payable shall be $15 million. (g) Notwithstanding Section 13.09(a), if the Closing has not be required occurred prior to January 15, 1998 because of a material breach by the Company of any representation, warranty or covenant of the Company under this Agreement, the Company shall pay Purchaser's Expenses and a Termination Fee equal to $15 million. (h) Notwithstanding Section 13.09(a), if Purchaser terminates this Agreement pursuant to clause (i) to the costsproviso of the last sentence of Sections 8.04 or Section 8.07, expenses the Company shall pay Purchaser's Expenses and fees referred to in paragraph the Termination Fee. (ai) Notwithstanding Section 13.09(a), upon the occurrence of this Section 13.10the Closing, the Company shall pay Purchaser's Expenses.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting and consulting fees of the Purchaser, incurred in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the Purchaser and its officers, directors, partners, employees, trustees and agents, each person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein or (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange ActPurchaser); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 11.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.1011.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.1011.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 11.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing The indemnification required by this Section 11.10 shall fail to occur solely as a result be made by periodic payments of the failure amount thereof during the course of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunderinvestigation or defense, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letteras and when bills are received or expense, and (B) the transaction fee paid pursuant to Section 1.6loss, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10damage or liability is incurred.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting legal and consulting fees of the Purchaser, incurred Purchaser in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or the Notes or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the Purchaser and its officers, directors, partners, employees, trustees and agents, each person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such the Purchaser of any of its agreements contained herein or herein, (ii) from the gross negligence or willful misconduct of such the Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such the Purchaser within the meaning of the Securities Act or the Exchange ActAct or (iii) from an ERISA violation resulting from any action or inaction by the Purchaser, other than an ERISA violation resulting from a breach by the Company of this Agreement); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 12.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.1012.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.1012.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 12.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(xii) (x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the or --------------------- reimburse Purchaser for (i) all of its out-of-pocket expensesreasonable legal counsel, including reasonable outside legal, accounting and consulting fees of the Purchaser, incurred to Purchaser in connection with this Agreement the Documents and the Certificate of Designation and the consummation of all transactions contemplated herebyhereby and thereby (the "Transaction Fees"), (ii) all costs, expenses and all costs and expenses reasonable legal fees relating ---------------- to any future amendment amendments or supplement supplements to this Agreement the Documents or any of the Securities Series D Preferred Stock (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummatedconsummated and (iii) all costs, expenses and all costs and expenses reasonable legal fees of the Purchaser relating to the enforcement of this Agreementagainst the Company, the Registration Rights Agreement, Document or the Warrant Agreement or any Certificate of the SecuritiesDesignation. The maximum amount of Transaction Fees payable by the Company under this Section 6.9(a) shall be entitled to credit in the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligationaggregate not exceed $50,000. (b) The Company further agrees to indemnify and save harmless the Purchaser and its officers, directors, partners, employees, trustees and agents, and each person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expensesexpenses (including, without limitation, reasonable attorneys' fees, whether incurred in connection with a claim against the Company or a third party claim), damages or other liabilities (collectively, "Losses") resulting from any breach of any representation, ------ warranty, covenant or agreement set forth in this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings brought by any third party arising out of the transactions contemplated hereby and thereby (other than such costs, expenses, damages or other liabilities Losses resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein or (ii) from the gross negligence or willful misconduct of such Purchaser or any of its respective officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange Act); provided, however, that, if -------- ------- and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified Each party entitled to indemnification under this Section 13.10 will6.9 (each, an "indemnified party") shall, promptly after the receipt of notice of the commencement of any action against such `indemnified party in respect of which indemnity may be sought from the Company a party (each, an "indemnifying party") on account of an indemnity agreement contained in this Section 13.106.9, notify the Company indemnifying party in writing of the commencement thereof. The omission of any indemnified party so to notify the Company indemnifying party of any such action shall not relieve the Company indemnifying party from any liability which it the indemnifying party may have to such indemnified party except to the extent the Company indemnifying party shall have been materially prejudiced by the omission of such indemnified party so to notify the Companyindemnifying party, pursuant to this Section 13.106.9. In case any such action shall be brought against any indemnified party and it shall notify the Company indemnifying party of the commencement thereof, the Company indemnifying party shall be entitled to participate therein and, to the extent that it the indemnifying party may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company indemnifying party to such indemnified party of its election so to assume the defense thereof, the Company will indemnifying party shall not be liable to such indemnified party under this Section 13.10 6.9 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Companyindemnifying party; provided, -------- however, that (i) if the Company indemnifying party shall -------- ------- elect not to assume the ------- defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company indemnifying party and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Companyindemnifying party, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company indemnifying party shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If In case any one or more of the Closing covenants and/or agreements set forth in this Agreement shall fail have been breached by the Company, Purchaser may proceed to occur solely protect and enforce its rights either by suit in equity and/or by action at law, including, but not limited to, an action for damages as a result of the failure any such breach and/or an action for specific performance of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to any such covenant or agreement contained in paragraph (a) of this Section 13.10Agreement.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the Purchaser THLi for all of its out-of-pocket expenses, including reasonable outside legal, accounting legal and consulting fees of the Purchaser, incurred THLi in connection with this Agreement and the consummation of all transactions contemplated hereby, which costs shall not exceed $50,000, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities Series A Preferred Stock (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser THLi relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligationSeries A Preferred Stock. (b) The Company further agrees to indemnify and save harmless the each Purchaser and its each Purchaser's officers, directors, partners, employees, trustees and agents, each person Person who controls the such Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its representations, warranties or other agreements contained herein or herein, (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person Person who controls such Purchaser within the meaning of the Securities Act or the Exchange ActAct or (iii) from an ERISA violation resulting from any action or inaction by such Purchaser, other than an ERISA violation resulting from a breach by the Company of this Agreement); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 9.9 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, 9.9 notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.109.9. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 9.9 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(xii) (x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result . The obligations of the failure of the Purchaser Company to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company each indemnified party hereunder shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letterseparate obligations, and (B) the transaction fee paid pursuant Company's liability to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company any such indemnified party hereunder shall not be required extinguished solely because any other indemnified party is not entitled to pay indemnity hereunder. The obligations of the costsCompany under this Section 9.9 shall survive the redemption or purchase by the Company of the shares of Series A Preferred Stock purchased by any Purchaser, expenses any transfer of the Series A Preferred Stock by any Purchaser and fees referred to in paragraph (a) the termination of this Section 13.10Agreement, the Series A Preferred Stock, the Stockholders Agreement and any of the other documents executed in connection herewith.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the Purchaser THLi for all of its out-of-pocket expenses, including reasonable outside legal, accounting legal and consulting fees of the Purchaser, incurred THLi in connection with this Agreement and the consummation of all transactions contemplated hereby, which costs shall not exceed $50,000, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities Series A Preferred Stock (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the Purchaser THLi relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligationSeries A Preferred Stock. (b) The Company further agrees to indemnify and save harmless the each Purchaser and its each Purchaser's officers, directors, partners, employees, trustees and agents, each person Person who controls the such Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its representations, warranties or other agreements contained herein or herein, (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person Person who controls such Purchaser within the meaning of the Securities Act or the Exchange ActAct or (iii) from an ERISA violation resulting from any action or inaction by such Purchaser, other than an ERISA violation resulting from a breach by the Company of this Agreement); providedPROVIDED, howeverHOWEVER, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 9.9 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, 9.9 notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.109.9. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 9.9 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; providedPROVIDED, howeverHOWEVER, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(xii) (x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result . The obligations of the failure of the Purchaser Company to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company each indemnified party hereunder shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letterseparate obligations, and (B) the transaction fee paid pursuant Company's liability to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company any such indemnified party hereunder shall not be required extinguished solely because any other indemnified party is not entitled to pay indemnity hereunder. The obligations of the costsCompany under this Section 9.9 shall survive the redemption or purchase by the Company of the shares of Series A Preferred Stock purchased by any Purchaser, expenses any transfer of the Series A Preferred Stock by any Purchaser and fees referred to in paragraph (a) the termination of this Section 13.10Agreement, the Series A Preferred Stock, the Stockholders Agreement and any of the other documents executed in connection herewith.

Expenses and Remedies. (a) Subject Irrespective of whether the Closing is effected, each party to paragraph (d), the Company agrees to pay the Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting and consulting fees of the Purchaser, incurred in connection with this Agreement and the consummation of all transactions contemplated hereby, and shall pay all costs and expenses relating that it incurs with respect to any future amendment or supplement to the negotiation, execution, delivery and performance of this Agreement or and any of the Securities (or any proposal by other documents associated with the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses consummation of the Purchaser relating transactions contemplated herein. If any action at law or in equity is necessary to enforce or interpret the enforcement terms of this Agreement, the Registration Investor's Rights AgreementAgreement or the Certificate of Designation, the Warrant Agreement or any of the Securities. The Company prevailing party shall be entitled to credit the underwriting deposit previously paid by it reasonable attorney's fees, costs and necessary disbursements in addition to the Purchaser pursuant any other relief to the Fee Letter against which such expense reimbursement obligationparty may be entitled. (b) The Company further agrees to indemnify and save hold harmless the Purchaser and its the Purchaser's officers, directors, partners, employees, trustees and agents, each person Person who controls the Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (Company, including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby such breach (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, from (i) from the breach by such the Purchaser of any of its representations, warranties or other agreements contained herein or herein, (ii) from the gross negligence or willful misconduct of such the Purchaser or any of its officers, directors, partners, employees or agents, or any person Person who controls such the Purchaser within the meaning of the Securities Act or the Exchange ActAct or (iii) an ERISA violation resulting from any action or inaction by the Purchaser, other than an ERISA violation resulting from a breach by the Company of this Agreement); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The indemnified party under this Section 13.10 9.9 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.10, 9.9 notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.109.9. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 9.9 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(xii) (x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result any such defenses. The obligations of the failure of the Purchaser Company to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company each indemnified party hereunder shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letterseparate obligations, and (B) the transaction fee paid pursuant Company's liability to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company any such indemnified party hereunder shall not be required extinguished solely because any other indemnified party is not entitled to pay indemnity hereunder. The obligations of the costsCompany under this Section 9.9 shall survive the redemption or purchase by the Company of the shares of Series A Preferred Stock purchased by any Purchaser, expenses any transfer of the Series A Preferred Stock by any Purchaser and fees referred to in paragraph (a) the termination of this Section 13.10Agreement, the Series A Preferred Stock, and any of the other documents executed in connection herewith.

Expenses and Remedies. (a) Subject to paragraph (d), the The Company agrees to pay the each Purchaser for all of its out-of-pocket expenses, including reasonable outside legal, accounting legal and consulting fees of the Purchaser, incurred such Purchaser in connection with this Agreement and the consummation of all transactions contemplated hereby, and all costs and expenses relating to any future amendment or supplement to this Agreement or any of the Securities (or any proposal by the Company for such amendment or supplement) whether or not consummated or any waiver or consent with respect thereto (or any proposal for such waiver or consent) whether or not consummated, and all costs and expenses of the each Purchaser relating to the enforcement of this Agreement, the Registration Rights Agreement, the Warrant Agreement Warrants or the Notes or any of the Securities. The Company shall be entitled to credit the underwriting deposit previously paid by it to the Purchaser pursuant to the Fee Letter against such expense reimbursement obligation. (b) The Company further agrees to indemnify and save harmless the each Purchaser and its respective officers, directors, partners, employees, trustees and agents, each person who controls the such Purchaser within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages or other liabilities resulting from any breach of this Agreement by the Company (including the breach of any covenant or representation or warranty made by the Company) or any legal, administrative or other proceedings arising out of the transactions contemplated hereby (other than such costs, expenses, damages or other liabilities resulting, directly or indirectly, (i) from the breach by such Purchaser of any of its agreements contained herein or herein, (ii) from the gross negligence or willful misconduct of such Purchaser or any of its officers, directors, partners, employees or agents, or any person who controls such Purchaser within the meaning of the Securities Act or the Exchange ActAct or (iii) from an ERISA violation resulting from any action or inaction by such Purchaser, other than an ERISA violation resulting from a breach by the Company of this Agreement); provided, however, that, if and to the extent that such indemnification is -------- ------- unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. (c) The An indemnified party under this Section 13.10 12.10 will, promptly after the receipt of notice of the commencement of any action against such indemnified party in respect of which indemnity may be sought from the Company on account of an indemnity agreement contained in this Section 13.1012.10, notify the Company in writing of the commencement thereof. The omission of any indemnified party so to notify the Company of any such action shall not relieve the Company from any liability which it may have to such indemnified party except to the extent the Company shall have been materially prejudiced by the omission of such indemnified party so to notify the Company, pursuant to this Section 13.1012.10. In case any such action shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the Company to such indemnified party of its election so to assume the defense thereof, the Company will not be liable to such indemnified party under this Section 13.10 12.10 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof nor for any settlement thereof entered into without the consent of the Company; provided, however, that (i) if the Company shall -------- ------- elect not to assume the defense of such claim or action or (ii) if the indemnified party reasonably determines (x) that there may be a conflict between the positions of the Company and of the indemnified party in defending such claim or action or (y) that there may be legal defenses available to such indemnified party different from or in addition to those available to the Company, then separate counsel for the indemnified party shall be entitled to participate in and conduct the defense, in the case of (i) and (ii)(x), or such different defenses, in the case of (ii)(y), and the Company shall be liable for any reasonable legal or other expenses incurred by the indemnified party in connection with the defense. (d) If the Closing shall fail to occur solely as a result of the failure of the Purchaser to receive funding from its limited partners pursuant to the Purchaser's capital call following the satisfaction of all other conditions to Purchaser's obligations hereunder, (i) the Company shall be entitled to a refund of (A) the underwriting deposit paid pursuant to the Fee Letter, and (B) the transaction fee paid pursuant to Section 1.6, and (ii) Purchaser shall pay the Company for all of its out-of-pocket expenses, including reasonable outside legal and accounting fees. Further, the Company shall not be required to pay the costs, expenses and fees referred to in paragraph (a) of this Section 13.10.