INDEMNIFIED PARTY'S BAD FAITH, GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. YOU ALSO AGREE NOT TO ASSERT ANY CLAIM AGAINST
ANY INDEMNIFIED PARTY, AND EACH OF US AGREES NOT TO ASSERT ANY CLAIM AGAINST
YOU, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ON ANY
THEORY OF LIABILITY IN CONNECTION IN ANY WAY WITH THIS COMMITMENT LETTER, THE
FEE LETTER, THE TERM SHEETS, THE CREDIT FACILITIES, THE LOANS THEREUNDER AND THE
USE OF PROCEEDS THEREFROM, ANY OF THE TRANSACTIONS AND THE PERFORMANCE BY ANY
INDEMNIFIED PARTY OF THE SERVICES CONTEMPLATED HEREBY. IT IS FURTHER AGREED THAT
EACH OF MERRILL LYNCH AND BANK OF AMERICA SHALL ONLY HAVE LIABILITY TO YOU (AS
OPPOSED TO ANY OTHER PERSON) AND THAT EACH OF BANK OF AMERICA AND MERRILL LYNCH
SHALL BE LIABLE SOLELY IN RESPECT OF ITS OWN COMMITMENT TO THE CREDIT FACILITIES
ON A SEVERAL, AND NOT JOINT, BASIS WITH ANY OTHER LENDER AND THAT SUCH LIABILITY
SHALL ONLY ARISE TO THE EXTENT DAMAGES HAVE BEEN CAUSED BY A BREACH OF ITS
OBLIGATIONS HEREUNDER TO NEGOTIATE IN GOOD FAITH DEFINITIVE DOCUMENTATION FOR
THE APPLICABLE CREDIT FACILITY ON THE TERMS SET FORTH HEREIN, AS DETERMINED IN A
FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS COMMITMENT 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.
You agree that, without our prior written consent, 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 satisfactory to the Indemnified Parties 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 US AND OUR AFFILIATES FOR OUR
AND THEIR REASONABLE OUT-OF-POCKET EXPENSES UPON OUR 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 AND THE REASONABLE
FEES, DISBURSEMENTS AND OTHER CHARGES OF COUNSEL (INCLUDING ANY LOCAL OR
REGULATORY COUNSEL) 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 COMMITMENT LETTER, THE TERM SHEETS, THE FEE
LETTER AND THE CREDIT DOCUMENTS, AND WHETHER OR