THE COMPANY HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OF
THE LEHMAN LENDERS, LEHMAN BROTHERS, MLCC, MLPF&S, THE OTHER LENDERS AND EACH OF
THEIR RESPECTIVE AFFILIATES AND ALL THEIR RESPECTIVE OFFICERS, DIRECTORS,
PARTNERS, TRUSTEES, EMPLOYEES, CONTROLLING PERSONS AND AGENTS (EACH, AN
"INDEMNIFIED PERSON") FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES AND
LIABILITIES TO WHICH ANY INDEMNIFIED PERSON MAY BECOME SUBJECT ARISING OUT OF OR
IN CONNECTION WITH THIS COMMITMENT LETTER, THE CREDIT FACILITY, THE USE OF THE
PROCEEDS THEREFROM, ANY OF THE OTHER TRANSACTIONS CONTEMPLATED BY THIS
COMMITMENT LETTER OR ANY OTHER TRANSACTION RELATED THERETO OR ANY CLAIM,
LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING (EACH A
"CLAIM" AND COLLECTIVELY THE "CLAIMS"), REGARDLESS
2
OF WHETHER ANY INDEMNIFIED PERSON IS A PARTY THERETO, AND TO REIMBURSE EACH
INDEMNIFIED PERSON PROMPTLY UPON DEMAND FOR ALL REASONABLE LEGAL AND OTHER
EXPENSES REASONABLY INCURRED BY IT IN CONNECTION WITH INVESTIGATING, PREPARING
TO DEFEND OR DEFENDING, OR PROVIDING EVIDENCE IN OR PREPARING TO SERVE OR
SERVING AS A WITNESS WITH RESPECT TO, ANY LAWSUIT, INVESTIGATION, CLAIM OR OTHER
PROCEEDING RELATING TO ANY OF THE FOREGOING (INCLUDING, WITHOUT LIMITATION, IN
CONNECTION WITH THE ENFORCEMENT OF THE INDEMNIFICATION OBLIGATIONS SET FORTH
HEREIN); PROVIDED, HOWEVER, THAT NO INDEMNIFIED PERSON WILL BE ENTITLED TO
INDEMNITY HEREUNDER IN RESPECT OF ANY LOSS, CLAIM, DAMAGE, LIABILITY OR EXPENSE
TO THE EXTENT SUCH LOSS, CLAIM, DAMAGE, LIABILITY OR EXPENSE RESULTS FROM (I)
THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SUCH INDEMNIFIED PERSON, (II) ANY
MATERIAL BREACH BY SUCH INDEMNIFIED PERSON OF ITS REPRESENTATIONS OR OBLIGATIONS
UNDER THIS COMMITMENT LETTER OR (III) THE VIOLATION BY SUCH INDEMNIFIED PERSON
OF ANY LAW, RULE OR REGULATION BINDING UPON SUCH INDEMNIFIED PERSON (THE MATTERS
SET FORTH IN THE FOREGOING CLAUSES (I) THROUGH (III) BEING COLLECTIVELY REFERRED
TO AS THE "INDEMNITY EXCLUSIONS").
IN NO EVENT WILL ANY INDEMNIFIED PERSON BE
LIABLE ON ANY THEORY OF LIABILITY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, LOST PROFITS OR PUNITIVE DAMAGES AS A RESULT OF ANY FAILURE TO FUND THE
CREDIT FACILITY OR OTHERWISE IN CONNECTION WITH THE CREDIT FACILITY.
NO
INDEMNIFIED PERSON WILL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY
UNAUTHORIZED PERSONS OF INFORMATION, PROJECTIONS OR OTHER MATERIALS SENT THROUGH
ELECTRONIC, TELECOMMUNICATIONS OR OTHER INFORMATION TRANSMISSION SYSTEMS THAT
ARE INTERCEPTED BY UNAUTHORIZED PERSONS, EXCEPT TO THE EXTENT SUCH USE RESULTED
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PERSON.
(B)
THE COMPANY FURTHER AGREES THAT, WITHOUT THE PRIOR WRITTEN CONSENT
OF EACH OF LEHMAN AND MERRILL LYNCH, WHICH CONSENT WILL NOT BE UNREASONABLY
WITHHELD, IT WILL NOT ENTER INTO ANY SETTLEMENT OF A LAWSUIT, CLAIM OR OTHER
PROCEEDING AGAINST ANY INDEMNIFIED PERSON ARISING OUT OF THIS COMMITMENT LETTER
OR THE TRANSACTIONS UNLESS SUCH SETTLEMENT INCLUDES AN EXPLICIT AND
UNCONDITIONAL RELEASE FROM THE PARTY BRINGING SUCH LAWSUIT, CLAIM OR OTHER
PROCEEDING OF SUCH INDEMNIFIED PERSON.
(C)
IN CASE ANY ACTION OR PROCEEDING IS INSTITUTED INVOLVING ANY
INDEMNIFIED PERSON FOR WHICH INDEMNIFICATION IS TO BE SOUGHT HEREUNDER BY SUCH