Common use of Indemnification of the Investor Clause in Contracts

Indemnification of the Investor. The Company agrees to indemnify and hold harmless each of the Investors and its owners, officers, directors, managers, members, agents, advisors, successors and assigns (each, an “Indemnified Party”), against any losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Company, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), any Issuer Free Writing Prospectus or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to perform their respective obligations hereunder or under law; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus Supplement in reliance upon and in conformity with written information furnished to the Company by the Indemnified Party, specifically for use in the preparation thereof. In addition to their other obligations under this Section 9(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any such interim reimbursement payment is so held to have been improper, each Indemnified Party that received such payment shall promptly return it to the party or parties that made such payment, together with interest, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by The Wall Street Journal (the “Prime Rate”). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Company may otherwise have.

Indemnification of the Investor. The In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company agrees to shall indemnify and hold harmless the Investor, each of the Investors and its ownersdirectors, officers, directors, managersstockholders, members, agentspartners, advisorsemployees, successors representatives, agents and assigns advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Indemnified Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against any actual losses, liabilities, obligations, claims, damages or liabilitiescontingencies, joint or severaldamages, to which such Indemnified Party may become subject, under the Securities Act or otherwise costs and expenses (including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company), court costs, reasonable attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) that an Investor Party has suffered or incurred resulting directly and primarily from any breach of any litigation if such settlement is effected with the written consent of the Companyrepresentations, insofar as such losseswarranties, claims, damages covenants or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated agreements made by reference into the Prospectus), any Issuer Free Writing Prospectus or in any materials or information provided to investors by, or with the approval of, the Company in connection with this Agreement, the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole Registration Rights Agreement or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company other Transaction Documents to perform their respective obligations hereunder or under lawwhich it is a party; provided, however, that the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be liable in any such case to affected or deemed waived by reason of the extent fact that an Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply with any agreement or covenant. Any investigation by such loss, claim, damage, liability Investor Party shall be for its own protection only and shall not affect or action arises out of impair any right or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus Supplement in reliance upon and in conformity with written information furnished remedy hereunder. Investor herby represents to the Company that it is not aware as of the date hereof of any breach by the Indemnified Party, specifically for use in the preparation thereof. In addition to their other obligations under this Section 9(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdictionhereunder. To the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any such interim reimbursement payment is so held to have been improperreason, each Indemnified Party that received such payment the Company shall promptly return it make the maximum contribution to the party or parties that made such payment, together with interest, determined on the basis payment and satisfaction of each of the prime rate (or other commercial lending rate for borrowers Damages which is permissible under applicable law, provided that in no event shall the Investor be obligated to contribute any amount in excess of the highest credit standing) announced from time to time by The Wall Street Journal (the “Prime Rate”). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate aggregate proceeds from the date resale of such request. This indemnity agreement shall be in addition to any liabilities which Shares less the Company may otherwise haveaggregate VWAP Purchase Price received under this Agreement.

Indemnification of the Investor. The Company agrees to indemnify and hold harmless each of the Investors and its owners, officers, directors, managers, members, agents, advisors, successors and assigns (each, an “Indemnified Party”), against any losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Company, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), any Issuer Free Writing Prospectus or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to perform their respective obligations hereunder or under law; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus Supplement in reliance upon and in conformity with written information furnished to the Company by the Indemnified Party, specifically for use in the preparation thereof. In addition to their other obligations under this Section 9(a8(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a8(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any such interim reimbursement payment is so held to have been improper, each Indemnified Party that received such payment shall promptly return it to the party or parties that made such payment, together with interest, compounded daily, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by The Wall Street Journal (the “"Prime Rate”"). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Company may otherwise have.

Indemnification of the Investor. The Subject to the provisions of this Section 4.1, the Company agrees to will indemnify and hold harmless each of the Investors Investor and its ownersAffiliates, directors, officers, directors, managersstockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Investor (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders, agents, advisorsmembers, successors partners or employees (and assigns any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, an “Indemnified Investor Party”)) harmless from any and all losses, against any lossesliabilities, obligations, claims, damages or liabilitiescontingencies, joint or severaldamages, costs and expenses, including all judgments, amounts paid in settlements, court costs, reasonable attorneys’ fees and costs of investigation (but excluding any taxes other than those for which the Company is responsible pursuant to which such Indemnified Section 5.2 hereof) that any Investor Party may become subject, under suffer or incur as a result of or relating to: (a) the Securities Act or otherwise Conversion Transactions; (including in settlement b) any breach of any litigation if such settlement is effected with the written consent of the Companyrepresentations, insofar as warranties, covenants or agreements in this Conversion Agreement; (c) the execution of this Conversion Agreement or any agreement or instrument contemplated hereby or thereby, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby; or (d) any actual or prospective claim, litigation, investigation, proceeding or other action instituted in any capacity, whether based on contract, tort or any other theory, whether brought by a third party or by any party hereto, and regardless of whether any Investor Party is a party thereto, with respect to the transactions contemplated by this Conversion Agreement, the Existing Notes or the Indenture (except to the extent such lossesaction is based upon a breach of such Investor Party’s representations, claimswarranties or covenants under this Conversion Agreement or any agreements or understandings such Investor Party may have with any such shareholder or any violations by such Investor Party of state or federal securities laws or any conduct by such Investor Party which constitutes fraud, damages gross negligence, willful misconduct or liabilities (or actions malfeasance). If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Conversion Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Investor Party. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof) arise out , but the fees and expenses of or are based upon such counsel shall be at the expense of such Investor Party except to the extent that (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated employment thereof has been specifically authorized by reference into the Prospectus), any Issuer Free Writing Prospectus or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”)writing, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; has failed after a reasonable period of time to assume such defense and to employ counsel (not to exceed 90 days) or (iii) in whole such action there is a conflict or in part upon potential conflict on any failure material issue between the position of the Company and the position of such Investor Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel and local counsel and shall pay such fees and expenses as incurred. The Company will not be liable to perform their respective obligations hereunder any Investor Party under this Conversion Agreement (y) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or under lawdelayed; provided, however, that if at any time an Investor Party shall have requested the Company to reimburse such Investor Party for fees and expenses of counsel as contemplated by this Section 4.2, the Company agrees that it shall be liable for any settlement of any proceeding effected without their written consent if (i) such settlement is entered into more than 30 days after receipt by such Investor Party of the aforesaid request, (ii) the Company shall have received notice of the terms of such settlement at least ten (10) days prior to such settlement being entered into, and (iii) the Company shall not be liable have reimbursed the Investor Party in any accordance with such case request; or (z) to the extent extent, but only to the extent, that any such a loss, claim, damagedamage or liability is attributable to any Investor Party’s breach of any of the representations, liability warranties, covenants or action arises out agreements made by such Investor Party in this Conversion Agreement or any violations by such Investor Party of state or is based upon an untrue statement federal securities laws or alleged untrue statement any conduct by such Investor Party which constitutes fraud, gross negligence, willful misconduct or omission malfeasance. The Company shall not, without the prior written consent of the Investor, not to be unreasonably withheld, effect any settlement, compromise or alleged omission made in the Prospectus Supplement in reliance upon and in conformity with written information furnished consent to the Company entry of judgment in any pending or threatened action, suit or proceeding in respect of which any Investor Party is or could have been a party and indemnity was or could have been sought hereunder by the Indemnified such Investor Party, specifically for use in unless such settlement, compromise or consent (i) includes an unconditional release of such Investor Party from all liability on claims that are the preparation thereofsubject matter of such action, suit or proceeding and (ii) does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any Investor Party. In addition to their other obligations under The indemnification required by this Section 9(a), 4.1 shall be made by periodic payments of the Company agrees thatamount thereof during the course of the investigation or defense, as an interim measure during the pendency of any claim, action, investigation, inquiry and when bills are received or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdictionare incurred. To the extent that any such interim reimbursement payment is so held to have been improper, each Indemnified Party that received such payment shall promptly return it to the party or parties that made such payment, together with interest, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by The Wall Street Journal (the “Prime Rate”). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement agreements contained herein shall be in addition to any cause of action or similar right of any Investor Party against the Company or others and any liabilities which the Company may be subject to pursuant to law. Notwithstanding anything to the contrary in this Conversion Agreement, in no event shall the Company have any liability to any Investor Party under this Section 4.1 or otherwise havefor any liability of any Investor Party arising under Section 16 of the Exchange Act.

Indemnification of the Investor. The Subject to the provisions of this Section 4.2, the Company agrees to will indemnify and hold harmless each of the Investors Investor and its ownersAffiliates, directors, officers, directors, managersstockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), including the Investor Designee, each Person who controls the Investor (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders, agents, advisorsmembers, successors partners or employees (and assigns any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, an “Indemnified Investor Party”)) harmless from any and all losses, against any lossesliabilities, obligations, claims, damages or liabilitiescontingencies, joint or severaldamages, to which such Indemnified costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any Investor Party may become subjectsuffer or incur as a result of or relating to: (a) the Exchange; (b) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Exchange Agreement or the other Transaction Agreements; (c) the execution of this Exchange Agreement or any of the other Transaction Agreements or any agreement or instrument contemplated hereby or thereby, the performance by the Company and the Trustee (as applicable) hereto and to the other Transaction Agreements of their respective obligations hereunder or thereunder and the consummation of the transactions contemplated hereby or thereby; (d) the non-payment of amounts payable under the Securities Act New Notes or otherwise (including in settlement of any litigation if such settlement is effected with the written consent use or proposed use of the proceeds from the Exchange by the Company; or (e) any actual or prospective claim, insofar as litigation, investigation, proceeding or other action instituted in any capacity, whether based on contract, tort or any other theory, whether brought by a third party or by any party hereto, and regardless of whether any Investor Party is a party thereto, with respect to the transactions contemplated by the Transaction Agreements, the Existing Notes or the Existing Indenture (except to the extent such lossesaction is based upon a breach of such Investor Party’s representations, claimswarranties or covenants under this Exchange Agreement or any agreements or understandings such Investor Party may have with any such shareholder or any violations by such Investor Party of state or federal securities laws or any conduct by such Investor Party which constitutes fraud, damages gross negligence, willful misconduct or liabilities (or actions malfeasance). If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Exchange Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Investor Party. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof) arise out , but the fees and expenses of or are based upon such counsel shall be at the expense of such Investor Party except to the extent that (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated employment thereof has been specifically authorized by reference into the Prospectus), any Issuer Free Writing Prospectus or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”)writing, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; has failed after a reasonable period of time to assume such defense and to employ counsel (not to exceed 90 days) or (iii) in whole such action there is a conflict or in part upon potential conflict on any failure material issue between the position of the Company and the position of such Investor Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel and local counsel and shall pay such fees and expenses as incurred. The Company will not be liable to perform their respective obligations hereunder any Investor Party under this Exchange Agreement (y) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or under lawdelayed; provided, however, that if at any time an Investor Party shall have requested the Company to reimburse such Investor Party for fees and expenses of counsel as contemplated by this Section 4.2, the Company agrees that it shall be liable for any settlement of any proceeding effected without their written consent if (i) such settlement is entered into more than 30 days after receipt by such Investor Party of the aforesaid request, (ii) the Company shall have received notice of the terms of such settlement at least ten (10) days prior to such settlement being entered into, and (iii) the Company shall not be liable have reimbursed the Investor Party in any accordance with such case request; or (z) to the extent, but only to the extent that any such a loss, claim, damagedamage or liability is attributable to any Investor Party’s breach of any of the representations, liability warranties, covenants or action arises out agreements made by such Investor Party in this Exchange Agreement or any violations by such Investor Party of state or is based upon an untrue statement federal securities laws or alleged untrue statement any conduct by such Investor Party which constitutes fraud, gross negligence, willful misconduct or omission malfeasance. The Company shall not, without the prior written consent of the Investor, not to be unreasonably withheld, effect any settlement, compromise or alleged omission made in the Prospectus Supplement in reliance upon and in conformity with written information furnished consent to the Company entry of judgment in any pending or threatened action, suit or proceeding in respect of which any Investor Party is or could have been a party and indemnity was or could have been sought hereunder by the Indemnified such Investor Party, specifically for use in unless such settlement, compromise or consent (i) includes an unconditional release of such Investor Party from all liability on claims that are the preparation thereofsubject matter of such action, suit or proceeding and (ii) does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any Investor Party. In addition to their other obligations under The indemnification required by this Section 9(a), 4.2 shall be made by periodic payments of the Company agrees thatamount thereof during the course of the investigation or defense, as an interim measure during the pendency of any claim, action, investigation, inquiry and when bills are received or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdictionare incurred. To the extent that any such interim reimbursement payment is so held to have been improper, each Indemnified Party that received such payment shall promptly return it to the party or parties that made such payment, together with interest, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by The Wall Street Journal (the “Prime Rate”). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement agreements contained herein shall be in addition to any cause of action or similar right of any Investor Party against the Company or others and any liabilities which the Company may be subject to pursuant to law. Notwithstanding anything to the contrary in this Exchange Agreement or the New Indenture, in no event shall the Company have any liability to any Investor Party under this Section 4.2 or otherwise havefor any liability of any Investor Party arising under Section 16 of the Exchange Act.