OF ITS
SUBSIDIARIES OR AFFILIATES ON ANY THEORY OF LIABILITY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION IN ANY WAY WITH THIS
AMENDED AND RESTATED COMMITMENT LETTER, THE FIRST STEP FEE LETTER, THE TERM
SHEET, THE SENIOR SECURED CREDIT FACILITIES, THE LOANS THEREUNDER AND THE USE OF
PROCEEDS THEREFROM, ANY OF THE FIRST STEP TRANSACTIONS OR ANY RELATED
TRANSACTION OR THE PERFORMANCE BY ANY PARTY HERETO OR ANY OF ITS SUBSIDIARIES,
OR AFFILIATES, ITS OBLIGATIONS HEREUNDER OR UNDER THE SENIOR SECURED CREDIT
FACILITIES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AMENDED AND RESTATED
COMMIT-
6
MENT LETTER, NO INDEMNIFIED PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM
THE USE BY OTHERS OF INFORMATION OR OTHER MATERIALS OBTAINED THROUGH ELECTRONIC
TELECOMMUNICATIONS OR OTHER INFORMATION TRANSMISSION SYSTEMS, EXCEPT TO THE
EXTENT DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION TO
HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S BAD FAITH, GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
You agree that, without the prior written consent of the Lead Arrangers (not to
be unreasonably withheld), neither you nor any of your affiliates or
subsidiaries will settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding in respect of which
indemnification has been or could be sought under the indemnification provisions
hereof (whether or not any other Indemnified Party is an actual or potential
party to such claim, action or proceeding), unless such settlement, compromise
or consent (i) includes an unconditional written release in form and substance
reasonably satisfactory to the Lead Arrangers of each Indemnified Party from all
liability arising out of such claim, action or proceeding and (ii) does not
include any statement as to or an admission of fault, culpability or failure to
act by or on behalf of any Indemnified Party.
7.
EXPENSES.
YOU AGREE TO REIMBURSE THE INITIAL LENDERS AND THEIR
AFFILIATES FOR THEIR REASONABLE, DOCUMENTED, OUT-OF-POCKET EXPENSES PROMPTLY
FOLLOWING THEIR REQUEST MADE FROM TIME TO TIME (INCLUDING, WITHOUT LIMITATION,
ALL REASONABLE DUE DILIGENCE INVESTIGATION EXPENSES, FEES OF CONSULTANTS ENGAGED
WITH YOUR CONSENT (NOT TO BE UNREASONABLY WITHHELD), SYNDICATION EXPENSES
(INCLUDING PRINTING, DISTRIBUTION, AND BANK MEETINGS), TRAVEL EXPENSES,
DUPLICATION FEES AND EXPENSES, SEARCH FEES, FILING AND RECORDING FEES AND THE
REASONABLE, DOCUMENTED FEES, DISBURSEMENTS AND OTHER CHARGES OF CAHILL GORDON &
REINDEL LLP AS COUNSEL TO THE INITIAL LENDERS, AND ANY SALES, USE OR SIMILAR
TAXES (AND ANY ADDITIONS TO SUCH TAXES) RELATED TO ANY OF THE FOREGOING)
INCURRED IN CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION AND
DELIVERY, WAIVER OR MODIFICATION, COLLECTION AND ENFORCEMENT OF THIS AMENDED AND
RESTATED COMMITMENT LETTER, THE TERM SHEET, THE FIRST STEP FEE LETTER AND THE
CREDIT DOCUMENTS AND THE SECURITY ARRANGEMENTS IN CONNECTION THEREWITH, AND
WHETHER OR NOT SUCH FEES AND EXPENSES ARE INCURRED BEFORE OR AFTER THE DATE
HEREOF OR ANY LOAN DOCUMENTATION IS ENTERED INTO OR THE FIRST STEP TRANSACTIONS
ARE CONSUMMATED OR ANY EXTENSIONS OF CREDIT ARE MADE UNDER THE SENIOR SECURED
CREDIT FACILITIES OR THIS AMENDED