Common use of Indemnity, Etc Clause in Contracts

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the Purchaser, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable judgment. In no event shall the Purchaser and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 7.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the PurchaserPurchasers, and the Purchaser’s Purchasers’ assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement (inclusive of the Disclosure Schedules) and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserPurchasers, the Purchaser’s Purchasers’ agreement to purchase the UnitsNotes and Warrants, the use or intended use of the proceeds from the sale of the Units Notes or Warrants or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser Purchasers and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s Purchasers’ intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby The Trustee shall be consummated, the Company agrees to indemnify, pay and hold the Purchaser, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless indemnified from and against any and all liabilitiesloss, obligationsliability, lossesclaim, damages, penalties, actions, judgments, suits, claims, costs, expenses damage and disbursements of any kind or nature expense whatsoever (including the reasonable fees including, but not limited to, any and disbursements of counsel for such Indemnitees all expense whatsoever reasonably incurred in connection with investigating, preparing or defending against any investigativelitigation, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party theretoany claims whatsoever) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or (the "Indemnified Claims") arising out of or based upon this Agreement, or the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation actions or failures to act of the transactions contemplated Trustee hereunder, except to the extent such loss, liability, claim, damage or expense is caused by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds results from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the Trustee's gross negligence or willful misconduct of that Indemnitee, (as determined by a final and unappealable order of a court of competent jurisdiction). DLJ agrees that it will indemnify and hold harmless the Trustee from and against any Indemnified Claims. DLJ's obligation hereunder shall survive the transfer of all or any of the Shares from the trust, the termination of the voting trust created herein, or the resignation or removal of the Trustee. The Trustee shall be entitled to the prompt reimbursement for its out-of-pocket expenses (including reasonable attorneys' fees and expenses) incurred in investigating, preparing or defending against any litigation, commenced or threatened, arising out of or based upon this Agreement, or the actions or failures to act of the Trustee hereunder, without regard to the outcome of such litigation; provided, however, that the Trustee shall be obligated to return any such reimbursement if it is subsequently determined by a final and unappealable order of a court of competent jurisdiction that the Trustee was grossly negligent or engaged in willful misconduct in the matter in question. Such expenses shall be payable by DLJ. If a final claim under this Section 18 is not paid in full within 30 days after a written claim has been submitted by the Trustee, the Trustee may at any time thereafter bring suit to recover the unpaid amount of the claim and, if successful in whole or in part, the Trustee shall be entitled to be paid also the expense of prosecuting such claims. The Trustee is authorized and non-appealable judgmentempowered to construe this Agreement and its construction of the same, made in good faith, shall be final, conclusive, and binding upon all Holders and all other parties interested. In no event shall The Trustee may, in its discretion, consult with counsel to be selected and employed by it, and the Purchaser and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions reasonable fees and expenses of such persons that are found by a court of competent jurisdiction after counsel shall be an expense for which the time for all appeals has passed Trustee is entitled to have resulted directly from Purchaser’s intentional misconduct or gross negligenceindemnity hereunder.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement6.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company Borrower agrees to indemnify, pay and hold the PurchaserLender, and the PurchaserLender’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserLender, the PurchaserLender’s agreement to purchase make the UnitsLoan, the use or intended use of the proceeds from the sale of the Units Loan or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser Lender and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company Borrower and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from PurchaserLender’s intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby The Trustee shall be consummated, the Company agrees to indemnify, pay and hold the Purchaser, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless indemnified from and against any and all liabilitiesloss, obligationsliability, lossesclaim, damages, penalties, actions, judgments, suits, claims, costs, expenses damage and disbursements of any kind or nature expense whatsoever (including the reasonable fees including, but not limited to, any and disbursements of counsel for such Indemnitees all expense whatsoever reasonably incurred in connection with investigating, preparing or defending against any investigativelitigation, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party theretoany claims whatsoever) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified LiabilitiesClaims”); provided that ) arising out of or based upon this Agreement or the Company shall have no obligation actions or failures to an Indemnitee act of the Trustee hereunder with respect or thereunder, except to Indemnified Liabilities directly resulting the extent such loss, liability, claim, damage or expense is caused by or results from the Trustee’s gross negligence negligence, willful misconduct, bad faith or willful misconduct of that Indemnitee, malfeasance (as determined by a final and unappealable order of a court of competent jurisdiction). Each Initial Holder agrees to indemnify and hold harmless the Trustee from and against such Initial Holder’s pro rata portion (based on its portion of the Initial Deposit) of any Indemnified Claims. Each Initial Holder’s obligations hereunder shall survive the transfer of all or any portion of its respective shares and interests, the termination of the voting trust created herein, or the resignation or removal of the Trustee. The Trustee shall be entitled to the prompt reimbursement for its out-of-pocket expenses (including reasonable attorneys’ fees and expenses) incurred in investigating, preparing or defending against any litigation, commenced or threatened, arising out of or based upon this Agreement, or the actions or failures to act of the Trustee hereunder or thereunder, without regard to the outcome of such litigation; provided, however, that the Trustee shall be obligated to return any such reimbursement if it is subsequently determined by a final and unappealable order of a court of competent jurisdiction that the out-of-pocket expenses giving rise to such reimbursement were incurred by the Trustee as a final and non-appealable judgmentresult of the Trustee’s gross negligence, willful misconduct, bad faith or malfeasance in the matter in question. In no event Such expenses payable under this Section 20 shall be prorated among the Purchaser and/or any of Holders in accordance with their respective employeesinterests in the Shares then deposited hereunder. If a claim under this Section 20 is not paid in full within 30 days after a written claim has been submitted by the Trustee, agentsthe Trustee may at any time thereafter bring suit to recover the unpaid amount of the claim and, partnersif successful in whole or in part, affiliatesthe Trustee shall be entitled to be paid also the expense of prosecuting such claims. The Trustee is authorized and empowered to construe this Agreement and its construction of the same, membersmade in good faith, equity and/or debt holdersshall be final, managersconclusive, officersand binding upon all Holders and all other parties interested. The Trustee may, directors and/or in its discretion, consult with counsel to be selected and employed by it, and the reasonable fees and expenses of such counsel shall be an expense for which the Trustee is entitled to indemnity hereunder. The Trustee hereby accepts the trust created hereby and agrees to carry out the terms and provisions hereof, but assumes no responsibility for the management of the Corporation or for any action taken by it, by any person elected as a director of the Corporation or by the Corporation pursuant to any vote cast or consent given by the Trustee. The Trustee, whether or not acting upon the advice of counsel, shall incur no liability because of any error of law or fact, mistake of judgment or any matter or thing done or omitted under this Agreement, except its own gross negligence, willful misconduct, bad faith or malfeasance. Anything done or suffered in good faith by the Trustee in accordance with the advice of counsel chosen as indicated above shall be conclusive in favor of the Trustee against the Holders and any other related interested party. The Trustee shall not be liable in any event for acts or similar type defaults of Personany other trustee or trustees (under this or any other voting trust of the Corporation’s securities) or for acts or defaults of any employee, agent, proxy or attorney-in-fact of any other trustee or trustees. The Trustee shall be protected and free from liability in acting upon any notice, request, consent, certificate, declaration, guarantee, affidavit or other paper or document or signature reasonably believed by it to be genuine and to have been signed by the proper party or parties or by the party or parties purporting to have signed the same. No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability to in the Company and/or performance of any of its officersduties hereunder, directorsor in the exercise of any of its rights or powers, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except if it shall have reasonable grounds for any actions or lack of actions believing that repayment of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed funds or adequate indemnity against such risk or liability is not reasonably assured to have resulted directly from Purchaser’s intentional misconduct or gross negligenceit.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 6.3, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the each Purchaser, and the such Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “IndemnitiesIndemnitees”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, Documents or the consummation of the transactions contemplated by this Agreement and and/or the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the such Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchasersuch Person’s intentional willful misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company (a) Each Grantor agrees to indemnify, pay reimburse and hold the PurchaserCollateral Agent and each other Secured Party, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agentsrepresentatives, consultants, auditors, attorneys and attorneys of any of them agents (hereinafter in this Section 12 referred to individually as "Indemnitee" and collectively called the “Indemnities”as "Indemnitees") harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, claims, costs, expenses or disbursements (including, without limitation, reasonable attorneys' fees and disbursements expenses) (for the purposes of any this Section the foregoing are collectively called "expenses") of whatsoever kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that which may be imposed on, incurred by, or asserted against that Indemnitee, or incurred by any of the Indemnitees in any manner way relating to or arising out of the SEC Reports, this Agreement and/or Security Documents or the documents executed in connection therewith or in any other Transaction Documents, way connected with the consummation administration of the transactions contemplated by this Agreement and thereby or the other Transaction Documentsenforcement of any of the terms of or the preservation of any rights hereunder, the statements contained or in any term sheet delivered by way relating to or arising out of the Purchasermanufacture, the Purchaser’s agreement to purchase the Unitsownership, the use ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or intended other disposition or use of the proceeds from Collateral (including, without limitation, latent or other defects, whether or not discoverable), the sale violation of the Units laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the exercise death of any right Person (including any Indemnitee), or remedy hereunder for property damage) or under the other Transaction Documents (the “Indemnified Liabilities”)any contract claim; provided that no Indemnitee shall be indemnified pursuant to this section for expenses to the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from extent solely caused by the gross negligence or willful wilful misconduct of that Indemnitee, such Indemnitee as determined by in a final, non-appealable judgment of a court of competent jurisdiction jurisdiction. Each Grantor agrees that upon written notice by a final and non-appealable judgment. In no event shall any Indemnitee of any assertion that could give rise to an expense, such Grantor shall, if so requested by such Indemnitee, assume full responsibility for the Purchaser and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s intentional misconduct or gross negligencedefense thereof.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement6.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the each Purchaser, and the such Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the such Purchaser, the such Purchaser’s agreement to purchase the UnitsNote, the use or intended use of the proceeds from the sale of the Units thereof or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the such Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from such Purchaser’s intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 6.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the each Purchaser, and the such Purchaser’s 's assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “"Indemnities”") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the such Purchaser, the such Purchaser’s 's agreement to purchase the UnitsNote, the use or intended use of the proceeds from the sale of the Units thereof or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “"Indemnified Liabilities”"); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the such Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from such Purchaser’s 's intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the The Company agrees to indemnify, pay and hold the Purchaser, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “IndemnitiesIndemnitees”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, Documents or the consummation of the transactions contemplated by this Agreement and and/or the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to to: (i) Indemnified Liabilities above that Indemnitee’s Purchase Price; or (ii) Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchasersuch Person’s intentional willful misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the (a) Each Company jointly and severally agrees to indemnify, pay reimburse and hold the PurchaserCollateral Agent and each other Secured Party, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agentsrepresentatives, consultants, auditors, attorneys and attorneys of any of them agents (hereinafter in this Section 12 referred to individually as "Indemnitee" and collectively called the “Indemnities”as "Indemnitees") harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, claims, costs, expenses or disbursements (including, without limitation, reasonable attorneys' fees and disbursements expenses) (for the purposes of any this Section the foregoing are collectively called "expenses") of whatsoever kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that which may be imposed on, incurred by, or asserted against that Indemnitee, or incurred by any of the Indemnitees in any manner way relating to or arising out of the SEC Reports, this Agreement and/or Security Documents or the documents executed in connection therewith or in any other Transaction Documents, way connected with the consummation administration of the transactions contemplated by this Agreement and thereby or the other Transaction Documentsenforcement of any of the terms of or the preservation of any rights hereunder, the statements contained or in any term sheet delivered by way relating to or arising out of the Purchasermanufacture, the Purchaser’s agreement to purchase the Unitsownership, the use ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or intended other disposition or use of the proceeds from Collateral (including, without limitation, latent or other defects, whether or not discoverable), the sale violation of the Units laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the exercise death of any right Person (including any Indemnitee), or remedy hereunder for property damage) or under the other Transaction Documents (the “Indemnified Liabilities”)any contract claim; provided that no Indemnitee shall be indemnified pursuant to this section for expenses to the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from extent solely caused by the gross negligence or willful wilful misconduct of that Indemnitee, such Indemnitee as determined by in a final, non-appealable judgment of a court of competent jurisdiction jurisdiction. Each Company agrees that upon written notice by a final and non-appealable judgment. In no event shall any Indemnitee of any assertion that could give rise to an expense, such Company shall, if so requested by such Indemnitee, assume full responsibility for the Purchaser and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s intentional misconduct or gross negligencedefense thereof.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 7.4 , whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the PurchaserPurchasers, and the Purchaser’s Purchasers’ assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement (inclusive of the Disclosure Schedules) and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserPurchasers, the Purchaser’s Purchasers’ agreement to purchase the UnitsNotes and Warrants, the use or intended use of the proceeds from the sale of the Units Notes or Warrants or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser Purchasers and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s Purchasers’ intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementThe Trustee, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay as such and hold the Purchaserin its individual capacity, and the Purchaser’s assignees and affiliates and their respective its directors, officers, directors, employees, and agents, consultantsshall be indemnified, auditors, defended and attorneys of any of them (collectively called the “Indemnities”) held harmless from and against any and all liabilitiesloss, obligationsliability, lossesclaim, damages, penalties, actions, judgments, suits, claims, costs, expenses damage and disbursements of any kind or nature expense whatsoever (including the reasonable fees including, but not limited to, any and disbursements of counsel all expense whatsoever reasonably incurred in investigating, preparing for such Indemnitees in connection with or defending against any investigativelitigation, administrative or judicial proceeding commenced or threatened, whether or not any claims whatsoever) (the "Indemnified Claims") arising out of, in connection with, or based upon this Agreement or the actions or failures to act of the Trustee hereunder or thereunder, except to the extent such Indemnitee loss, liability, claim, damage or expense is caused by or results from the Trustee's malfeasance (as determined by a final and unappealable order of a court of competent jurisdiction). DLJ agrees on behalf of itself and the Holders that it will indemnify, defend and hold harmless the Trustee, as such and in its individual, capacity, and its directors, officers, employees, and agents, from and against any Indemnified Claims. DLJ's obligation hereunder shall survive the transfer of all or any portions of its respective shares and interests, the termination of the voting trust created herein, or the resignation, removal or other cessation of service of the Trustee. The Trustee as such and in its individual capacity shall be designated a party theretoentitled to the prompt reimbursement from DLJ and the Holders, jointly and severally, for its out-of-pocket expenses (including, without limitation, reasonably attorneys' fees and other professional's fees and expenses) that may be imposed onincurred in investigating, incurred bypreparing for or defending against any litigation, commenced or asserted against that Indemniteethreatened, in any manner relating to or arising out of or based upon this Agreement, or the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation actions or failures to act of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy Trustee hereunder or under thereunder, without regard to the other Transaction Documents (the “Indemnified Liabilities”)outcome of such litigation; provided provided, however, that the Company Trustee shall have no obligation be obligated to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct return any such portion of that Indemnitee, such reimbursement as may be subsequently determined by a final and unappealable order of a court of competent jurisdiction to have been incurred by the Trustee as a final and non-appealable judgmentresult of the Trustee's malfeasance in the matter in question. In no event Such expenses payable under this Section 19 shall be prorated among the Purchaser and/or any of Holders in accordance with their respective employeesinterests in the Shares then deposited hereunder. If a claim under this Section 19 is not paid in full within 30 days after a written claim has been submitted by the Trustee, agentsthe Trustee may at any time thereafter bring suit to recover the unpaid amount of the claim and, partnersif successful in whole or in part, affiliatesthe Trustee as such and in its individual capacity shall be entitled to be paid also the expense of prosecuting such claims. The Trustee is authorized and empowered to construe this Agreement and its construction of the same, membersmade in good faith, equity and/or debt holdersshall be final, managersconclusive, officersand binding upon all Holders and all other parties interested. The Trustee may, directors and/or in its discretion, consult with counsel to be selected and employed by it, and the reasonable fees and expenses of such counsel shall be an expense for which the Trustee as such and in its individual capacity is entitled to reimbursement under this Agreement, and shall have no personal liability. The Trustee hereby accepts the voting trust created hereby and agrees to perform the obligations expressly required hereunder to be performed by the Trustee, but assumes no other related obligations and shall have no responsibility and shall have no personal liability for the management of the Corporation or similar type for any action taken by it, by any person elected as a director of Personthe Corporation or by the Corporation pursuant to any vote cast or consent given by the Trustee. The Trustee, have any whether or not acting upon the advice of counsel, shall incur no personal liability to any person or entity because of any error of law or fact, mistake of judgment or any matter or thing done or omitted under this Agreement, except for its own malfeasance. Anything done or suffered in good faith by the Company and/or Trustee in accordance with the advice of counsel chosen as indicated above or in good faith reliance on the provisions of this Agreement shall be conclusive in favor of the Trustee against the Holders and any other interested party and shall give rise to no personal liability on the part of the Trustee. The Trustee shall not be personally liable in any event for acts or defaults of any other trustee or trustees (under this or any other voting trust of the Corporation's securities) or for acts or defaults of any employee, agent, proxy or attorney-in-fact of any other trustee or trustees. The Trustee shall be fully protected and free form personal liability in relying or acting upon any notice, request, consent, certificate, declaration, guarantee, affidavit or other paper or document or signature reasonably believed by it to be genuine and to have been signed by the proper party or parties or by the party or parties purporting to have signed the same. No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability in the performance of any of its officersduties hereunder, directorsor in the exercise of any of its rights or powers, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except if it shall have reasonable grounds for any actions or lack of actions believing that repayment of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed funds or adequate indemnity against such risk or liability is not reasonably assured to have resulted directly from Purchaser’s intentional misconduct or gross negligenceit.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 9.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company Borrower agrees to indemnify, pay and hold the Purchasereach Lender, and the Purchasereach of such Lender’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, Persons engaged by it to evaluate or monitor the Collateral, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserLenders, the Purchaser’s Lenders’ agreement to purchase make the UnitsLoan, the use or intended use of the proceeds from the sale of the Units Loan or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting arising from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall any of the Purchaser Lenders and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company Borrower and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s either of the Lenders and/or the Lenders related persons named above intentional misconduct or gross negligence. No Lender shall be liable to the Borrower for any action and/or non-action of the other Lender.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 6.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company Borrower agrees to indemnify, pay and hold the PurchaserLender, and the Purchasereach of such Lender’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserLender, the PurchaserLender’s agreement to purchase make the UnitsLoan, the use or intended use of the proceeds from the sale of the Units Loan or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser any Lender and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company Borrower and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from PurchaserLender’s intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay The Trustee (including in its individual capacity and hold the Purchaser, and the Purchaser’s assignees and affiliates and their respective its officers, directors, employees, employees and agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless shall be indemnified from and against any and all liabilitiesloss, obligationsliability, lossesclaim, damagesdamage, penalties, actions, judgments, suits, claims, costs, expenses cost and disbursements of any kind or nature expense whatsoever (including the reasonable fees including, but not limited to, any and disbursements of counsel for such Indemnitees all expense whatsoever reasonably incurred in connection with investigating, preparing or defending against any investigativelitigation, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party theretoany claims whatsoever) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or (the "Indemnified Claims") arising out of the SEC Reports, or based upon this Agreement and/or or the other Transaction Documents, the consummation actions or failures to act of the transactions contemplated Trustee hereunder or thereunder, except to the extent such loss, liability, claim, damage, cost or expense is caused by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds results from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the Trustee's gross negligence or willful misconduct of that Indemnitee, (as determined by a final and unappealable order of a court of competent jurisdiction). DLJMB agrees on behalf of the Holders that it will indemnify and hold harmless the Trustee from and against any Indemnified Claims. DLJMB's obligation hereunder shall survive the transfer of all or any portions of its Shares and interests, the termination of the voting trust created hereby, or the resignation or removal of the Trustee. The Trustee shall be entitled to the prompt reimbursement for its out-of-pocket expenses (including reasonable attorneys' fees and expenses) incurred in investigating, preparing or defending against any litigation, commenced or threatened, arising out of or based upon this Agreement, or the actions or failures to act of the Trustee hereunder or thereunder, without regard to the outcome of such litigation; provided, however, that the Trustee shall be obligated to return any such reimbursement if it is subsequently determined by a final and unappealable order of a court of competent jurisdiction by a final and non-appealable judgmentthat the Trustee was grossly negligent or engaged in willful misconduct in the matter in question. In no event Such expenses payable under this Section 19 shall be prorated among the Purchaser and/or any of Holders in accordance with their respective employeesinterests in the Shares then deposited hereunder. If a claim under this Section 19 is not paid in full within 30 days after a written claim has been submitted by the Trustee, agentsthe Trustee may at any time thereafter bring suit to recover the unpaid amount of the claim and, partnersif successful in whole or in part, affiliatesthe Trustee shall be entitled to be paid also the expense of prosecuting such claims. The Trustee is authorized and empowered to construe this Agreement and its construction of the same, membersmade in good faith, equity and/or debt holdersshall be final, managersconclusive, officersand binding upon all Holders and all other parties interested. The Trustee may, directors and/or in its discretion, consult with counsel to be selected and employed by it, and the reasonable fees and expenses of such counsel shall be an expense for which the Trustee is entitled to indemnity hereunder. The Trustee hereby accepts the trust created hereby and agrees to carry out the terms and provisions hereof, but assumes no responsibility for the management of the Corporation or for any action taken by it, by any person elected as a director of the Corporation or by the Corporation pursuant to any vote cast or consent given by the Trustee. The Trustee, whether or not acting upon the advice of counsel, shall incur no liability because of any error of law or fact, mistake of judgment or any matter or thing done or omitted under this Agreement, except its own willful misconduct. Anything done or suffered in good faith by the Trustee in accordance with the advice of counsel chosen as indicated above shall be conclusive in favor of the Trustee against the Holders and any other related interested party. The Trustee shall not be liable in any event for acts or similar type defaults of Personany other trustee or trustees (under this or any other voting trust of the Corporation's securities) or for acts or defaults of any employee, agent, proxy or attorney-in-fact of any other trustee or trustees. The Trustee shall be protected and free from liability in acting upon any notice, request, consent, certificate, declaration, guarantee, affidavit or other paper or document or signature reasonably believed by it to be genuine and to have been signed by the proper party or parties or by the party or parties purporting to have signed the same. No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability to in the Company and/or performance of any of its officersduties hereunder, directorsor in the exercise of any of its rights or powers, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except if it shall have reasonable grounds for any actions or lack of actions believing that repayment of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed funds or adequate indemnity against such risk or liability is not reasonably assured to have resulted directly from Purchaser’s intentional misconduct or gross negligenceit.

Indemnity, Etc. In addition to Borrower shall indemnify Lender and its -------------- affiliates, including the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the Purchaser, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditorsrepresentatives and agents of Lender and its affiliates (each an "Indemnitee") from, and attorneys of any hold each of them (collectively called the “Indemnities”) harmless from and against against, any and all losses, liabilities, obligations, lossesclaims, damages, expenses, obligations, penalties, actions, judgments, suits, claims, costs, expenses and costs or disbursements of any kind or nature whatsoever (including including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitees Indemnitee in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto, but excluding Consequential Damages as defined in Section 6.12 hereof) that may at any time (including, without limitation, at any time following the payment of the Obligations) be imposed on, incurred by, or asserted against that Indemniteeor incurred by any Indemnitee as a result of, in any manner relating to or arising out of the SEC Reportsof, this Agreement and/or the other Transaction Documentsor in any way related to or by reason of, the consummation (i) any of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units hereby or the exercise execution, delivery or performance of any right Loan Document and (ii) the exercise by Lender of its rights and remedies hereunder (but excluding, as to any Indemnitee, any such losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from disbursements incurred solely by reason of the gross negligence or willful misconduct of that Indemnitee, such Indemnitee as finally determined by a court of competent jurisdiction by a final jurisdiction). Borrower's obligations under this Section shall survive the termination of this Agreement and non-appealable judgment. In no event shall the Purchaser and/or any payment of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s intentional misconduct or gross negligenceObligations.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementThe Trustee, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay as such and hold the Purchaserin its individual capacity, and the Purchaser’s assignees and affiliates and their respective its directors, officers, directors, employees, and agents, consultantsshall be indemnified, auditors, defended and attorneys of any of them (collectively called the “Indemnities”) held harmless from and against any and all liabilitiesloss, obligationsliability, lossesclaim, damages, penalties, actions, judgments, suits, claims, costs, expenses damage and disbursements of any kind or nature expense whatsoever (including the reasonable fees including, but not limited to, any and disbursements of counsel all expense whatsoever reasonably incurred in investigating, preparing for such Indemnitees in connection with or defending against any investigativelitigation, administrative or judicial proceeding commenced or threatened, whether or not any claims whatsoever) (the "Indemnified Claims") arising out of, in connection with, or based upon this Agreement or the actions or failures to act of the Trustee hereunder or thereunder, except to the extent such Indemnitee loss, liability, claim, damage or expense is caused by or results from the Trustee's malfeasance (as determined by a final and unappealable order of a court of competent jurisdiction). DLJ agrees on behalf of itself and the Holders that it will indemnify, defend and hold harmless the Trustee, as such and in its individual capacity, and its directors, officers, employees, and agents, from and against any Indemnified Claims. DLJ's obligation hereunder shall survive the transfer of all or any portions of its respective shares and interests, the termination of the voting trust created herein, or the resignation, removal or other cessation of service of the Trustee. The Trustee as such and in its individual capacity shall be designated a party theretoentitled to the prompt reimbursement from DLJ and the Holders, jointly and severally, for its out-of-pocket expenses (including, without limitation, reasonable attorneys' fees and other professional's fees and expenses) that may be imposed onincurred in investigating, incurred bypreparing for or defending against any litigation, commenced or asserted against that Indemniteethreatened, in any manner relating to or arising out of or based upon this Agreement, or the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation actions or failures to act of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the Purchaser, the Purchaser’s agreement to purchase the Units, the use or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy Trustee hereunder or under thereunder, without regard to the other Transaction Documents (the “Indemnified Liabilities”)outcome of such litigation; provided provided, however, that the Company Trustee shall have no obligation be obligated to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct return any such portion of that Indemnitee, such reimbursement as may be subsequently determined by a final and unappealable order of a court of competent jurisdiction to have been incurred by the Trustee as a final and non-appealable judgmentresult of the Trustee's malfeasance in the matter in question. In no event Such expenses payable under this Section 19 shall be prorated among the Purchaser and/or any of Holders in accordance with their respective employeesinterests in the Shares then deposited hereunder. If a claim under this Section 19 is not paid in full within 30 days after a written claim has been submitted by the Trustee, agentsthe Trustee may at any time thereafter bring suit to recover the unpaid amount of the claim and, partnersif successful in whole or in part, affiliatesthe Trustee as such and in its individual capacity shall be entitled to be paid also the expense of prosecuting such claims. The Trustee is authorized and empowered to construe this Agreement and its construction of the same, membersmade in good faith, equity and/or debt holdersshall be final, managersconclusive, officersand binding upon all Holders and all other parties interested. The Trustee may, directors and/or in its discretion, consult with counsel to be selected and employed by it, and the reasonable fees and expenses of such counsel shall be an expense for which the Trustee as such and in its individual capacity is entitled to reimbursement under this Agreement, and shall have no personal liability. The Trustee hereby accepts the voting trust created hereby and agrees to perform the obligations expressly required hereunder to be performed by the Trustee, but assumes no other related obligations and shall have no responsibility and shall have no personal liability for the management of the Corporation or similar type for any action taken by it, by any person elected as a director of Personthe Corporation or by the Corporation pursuant to any vote cast or consent given by the Trustee. The Trustee, have any whether or not acting upon the advice of counsel, shall incur no personal liability to any person or entity because of any error of law or fact, mistake of judgment or any matter or thing done or omitted under this Agreement, except for its own malfeasance. Anything done or suffered in good faith by the Company and/or Trustee in accordance with the advice of counsel chosen as indicated above or in good faith reliance on the provisions of this Agreement shall be conclusive in favor of the Trustee against the Holders and any other interested party and shall give rise to no personal liability on the part of the Trustee. The Trustee shall not be personally liable in any event for acts or defaults of any other trustee or trustees (under this or any other voting trust of the Corporation's securities) or for acts or defaults of any employee, agent, proxy or attorney-in-fact of any other trustee or trustees. The Trustee shall be fully protected and free from personal liability in relying or acting upon any notice, request, consent, certificate, declaration, guarantee, affidavit or other paper or document or signature reasonably believed by it to be genuine and to have been signed by the proper party or parties or by the party or parties purporting to have signed the same. No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability in the performance of any of its officersduties hereunder, directorsor in the exercise of any of its rights or powers, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except if it shall have reasonable grounds for any actions or lack of actions believing that repayment of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed funds or adequate indemnity against such risk or liability is not reasonably assured to have resulted directly from Purchaser’s intentional misconduct or gross negligenceit.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 7.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the PurchaserPurchasers, and the Purchaser’s Purchasers’ assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement (inclusive of the Disclosure Schedules) and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserPurchasers, the Purchaser’s Purchasers’ agreement to purchase the UnitsNotes and Warrants, the use or intended use of the proceeds from the sale of the Units Notes or Warrants or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser Purchasers and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s Purchasers’ intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 6.3, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the each Purchaser, and the such Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “IndemnitiesIndemnitees”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out (a) any breach of any of the SEC Reportsrepresentations or warranties, or any failure to perform or comply with any covenants or agreements, made by the Company in this Agreement and/or or in any other Documents or (b) any proceeding instituted against any Indemnitee, in any capacity, by any stockholder of the other Transaction DocumentsCompany who is not an Affiliate of such Indemnitee, the consummation with respect to any of the transactions contemplated by the Documents (unless such proceeding is based upon a breach of such Indemnitee’s representations or warranties, or any failure of such Indemnitee to perform or comply with any of its covenants or agreements, in this Agreement and the or in any other Transaction Documents, the statements contained in or any term sheet delivered violations by the Purchasersuch Indemnitee of state or federal securities laws, the Purchaser’s agreement to purchase the Unitsor any conduct by such Indemnitee which constitutes actual fraud, the use gross negligence or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents willful misconduct) (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the such Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchasersuch Person’s intentional willful misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this Agreement, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the (a) The Company agrees to indemnify, pay reimburse and hold the PurchaserCollateral Agent and each other Secured Party, and the Purchaser’s assignees and affiliates and their respective officers, directors, employees, agentsrepresentatives, consultants, auditors, attorneys and attorneys of any of them agents (hereinafter in this Section 12 referred to individually as "Indemnitee" and collectively called the “Indemnities”as "Indemnitees") harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, claims, costs, expenses or disbursements (including, without limitation, reasonable attorneys' fees and disbursements expenses) (for the purposes of any this Section the foregoing are collectively called "expenses") of whatsoever kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that which may be imposed on, incurred by, or asserted against that Indemnitee, or incurred by any of the Indemnitees in any manner way relating to or arising out of the SEC Reports, this Agreement and/or Security Documents or the documents executed in connection therewith or in any other Transaction Documents, way connected with the consummation administration of the transactions contemplated by this Agreement and thereby or the other Transaction Documentsenforcement of any of the terms of or the preservation of any rights hereunder, the statements contained or in any term sheet delivered by way relating to or arising out of the Purchasermanufacture, the Purchaser’s agreement to purchase the Unitsownership, the use ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or intended other disposition or use of the proceeds from Collateral (including, without limitation, latent or other defects, whether or not discoverable), the sale violation of the Units laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the exercise death of any right Person (including any Indemnitee), or remedy hereunder for property damage) or under the other Transaction Documents (the “Indemnified Liabilities”)any contract claim; provided that no Indemnitee shall be indemnified pursuant to this section for expenses to the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from extent solely caused by the gross negligence or willful wilful misconduct of that Indemnitee, such Indemnitee as determined by in a final, non-appealable judgment of a court of competent jurisdiction jurisdiction. The Company agrees that upon written notice by a final and non-appealable judgment. In no event shall the Purchaser and/or any Indemnitee of their respective employeesany assertion that could give rise to an expense, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officersshall, directorsif so requested by such Indemnitee, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except assume full responsibility for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchaser’s intentional misconduct or gross negligencedefense thereof.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 9.4, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company Borrower agrees to indemnify, pay and hold the PurchaserLender, and the Purchasereach of such Lender’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, Persons engaged by it to evaluate or monitor the Collateral, and attorneys of any of them (collectively called the “Indemnities”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of the SEC Reports, this Agreement and/or the other Transaction Documents, the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the statements contained in any term sheet delivered by the PurchaserLender, the PurchaserLender’s agreement to purchase make the UnitsLoan, the use or intended use of the proceeds from the sale of the Units Loan or the exercise of any right or remedy hereunder or under the other Transaction Documents (the “Indemnified Liabilities”); provided that the Company Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting arising from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the Purchaser any Lender and/or any of their respective employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company Borrower and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from PurchaserLender’s intentional misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 6.3, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the each Purchaser, and the such Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “IndemnitiesIndemnitees”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out (a) any breach of any of the SEC Reportsrepresentations or warranties, or any failure to perform or comply with any covenants or agreements, made by the Company in this Agreement and/or or in any other Documents or (b) any proceeding instituted against any Indemnitee, in any capacity, by any stockholder of the other Transaction DocumentsCompany who is not an Affiliate of such Indemnitee, the consummation with respect to any of the transactions contemplated by the Documents (unless such proceeding is based upon a breach of an Indemnitee’s representations or warranties, or any failure of an Indemnitee to perform or comply with any of its covenants or agreements, in this Agreement and the or in any other Transaction Documents, the statements contained in or any term sheet delivered violations by the Purchaseran Indemnitee of state or federal securities or other laws, the Purchaser’s agreement to purchase the Unitsor any conduct by such Indemnitee which constitutes bad faith, the use fraud, gross negligence or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents willful misconduct) (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the fraud, gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable judgment. In no event shall the such Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchasersuch Person’s intentional fraud, willful misconduct or gross negligence.

Indemnity, Etc. In addition to the payment of expenses pursuant to this AgreementSection 6.3, whether or not all and/or any of the transactions contemplated hereby shall be consummated, the Company agrees to indemnify, pay and hold the each Purchaser, and the such Purchaser’s assignees and affiliates and their respective officers, directors, employees, agents, consultants, auditors, and attorneys of any of them (collectively called the “IndemnitiesIndemnitees”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, reasonable documented out-of-pocket costs, reasonable documented out-of-pocket expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out (a) any breach of any of the SEC Reportsrepresentations or warranties, or any failure to perform or comply with any covenants or agreements, made by the Company in this Agreement and/or or in any other Documents or (b) any proceeding instituted against any Indemnitee, in any capacity, by any stockholder of the other Transaction DocumentsCompany who is not an Affiliate of such Indemnitee, the consummation with respect to any of the transactions contemplated by the Documents (unless such proceeding is based upon a breach of an Indemnitee’s representations or warranties, or any failure of an Indemnitee to perform or comply with any of its covenants or agreements, in this Agreement and the or in any other Transaction Documents, the statements contained in or any term sheet delivered violations by the Purchaseran Indemnitee of state or federal securities or other laws, the Purchaser’s agreement to purchase the Unitsor any conduct by such Indemnitee which constitutes bad faith, the use fraud, gross negligence or intended use of the proceeds from the sale of the Units or the exercise of any right or remedy hereunder or under the other Transaction Documents willful misconduct) (the “Indemnified Liabilities”); provided that the Company shall have no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities directly resulting from the violation of law or this Agreement, bad faith, fraud, gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction by a final and non-appealable nonappealable judgment. In no event shall the such Purchaser and/or any of their respective its employees, agents, partners, affiliates, members, equity and/or debt holders, managers, officers, directors and/or other related or similar type of Person, have any liability to the Company and/or any of its officers, directors, employees, agent, attorneys, affiliates, consultants, equity and/or debt holders except for any actions or lack of actions of such persons that are found by a court of competent jurisdiction after the time for all appeals has passed to have resulted directly from Purchasersuch Person’s intentional violation of law or this Agreement, bad faith, fraud, willful misconduct or gross negligence.