the Collateral or any other
related right or remedy or (iii) the commencement, defense, conduct of,
intervention in, or the taking of any other action with respect to, any
proceeding (including any bankruptcy or insolvency proceeding) related to Parent
or any Group Member, Loan Document or Obligation (or the response to and
preparation for any subpoena or request for document production relating
thereto), including fees and disbursements of counsel (including allocated costs
of internal counsel).
102
Section 11.4
Indemnities. (a) THE BORROWER AGREES TO INDEMNIFY, HOLD
HARMLESS AND DEFEND EACH AGENT, THE ARRANGERS, EACH LENDER, EACH L/C ISSUER,
EACH FORMER LENDER OR L/C ISSUER PARTY TO A SECURED HEDGING DOCUMENT, EACH
PERSON THAT EACH L/C ISSUER CAUSES TO ISSUE LETTERS OF CREDIT HEREUNDER AND EACH
OF THEIR RESPECTIVE RELATED PERSONS (EACH SUCH PERSON BEING AN "INDEMNITEE")
FROM AND AGAINST ALL LIABILITIES (INCLUDING BROKERAGE COMMISSIONS, FEES AND
OTHER COMPENSATION) THAT MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY
SUCH INDEMNITEE AND IN ANY MATTER RELATING TO OR ARISING OUT OF, IN CONNECTION
WITH OR AS A RESULT OF (I) ANY LOAN DOCUMENT, ANY DISCLOSURE DOCUMENT, OR ANY
OBLIGATION (OR THE REPAYMENT THEREOF), ANY LETTER OF CREDIT, THE USE OR INTENDED
USE OF THE PROCEEDS OF ANY LOAN OR THE USE OF ANY LETTER OF CREDIT, OR ANY
SECURITIES FILING OF, OR WITH RESPECT TO, ANY GROUP MEMBER, (II) ANY COMMITMENT
LETTER, PROPOSAL LETTER OR TERM SHEET WITH ANY PERSON OR ANY CONTRACTUAL
OBLIGATION, SYNDICATION OF THE CREDIT FACILITY PROVIDED HEREBY, ANY ENFORCEMENT
OF ANY LOAN DOCUMENTS (INCLUDING ANY SALES OF, COLLECTION FROM, OR OTHER
REALIZATION UPON ANY OF THE COLLATERAL OR THE ENFORCEMENT OF ANY GUARANTY)
ARRANGEMENT OR UNDERSTANDING WITH ANY BROKER, FINDER OR CONSULTANT, IN EACH CASE
ENTERED INTO BY OR ON BEHALF OF ANY GROUP MEMBER OR ANY AFFILIATE OF ANY OF THEM
IN CONNECTION WITH ANY OF THE FOREGOING AND ANY CONTRACTUAL OBLIGATION ENTERED
INTO IN CONNECTION WITH ANY E-SYSTEMS OR OTHER ELECTRONIC TRANSMISSIONS, (III)
ANY ACTUAL OR PROSPECTIVE INVESTIGATION, LITIGATION OR OTHER PROCEEDING, WHETHER
OR NOT BROUGHT BY ANY SUCH INDEMNITEE OR ANY OF ITS RELATED PERSONS, ANY HOLDERS
OF SECURITIES OR CREDITORS (AND INCLUDING ATTORNEYS' FEES IN ANY CASE), WHETHER
OR NOT ANY SUCH INDEMNITEE, RELATED PERSON, HOLDER OR CREDITOR IS A PARTY
THERETO, AND WHETHER OR NOT BASED ON ANY SECURITIES OR COMMERCIAL LAW OR
REGULATION OR ANY OTHER REQUIREMENT OF LAW OR THEORY THEREOF, INCLUDING COMMON
LAW, EQUITY, CONTRACT, TORT OR OTHERWISE, OR (IV) ANY OTHER ACT, EVENT OR
TRANSACTION RELATED, CONTEMPLATED IN OR ATTENDANT TO ANY OF THE FOREGOING
(COLLECTIVELY, THE "INDEMNIFIED MATTERS"); PROVIDED, THAT THE BORROWER SHALL NOT
HAVE ANY LIABILITY UNDER THIS SECTION 11.4 TO AN INDEMNITEE WITH RESPECT TO, AND
NO INDEMNITEE SHALL HAVE ANY LIABILITY HEREUNDER OTHER THAN (TO THE EXTENT
OTHERWISE LIABLE) FOR, ANY INDEMNIFIED MATTER TO THE EXTENT SUCH LIABILITY HAS
RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE, AS
DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL NON-APPEALABLE
JUDGMENT