PARTY UNDER THIS AMENDED AND
RESTATED COMMITMENT LETTER.
NO PARTY HERETO NOR ANY OF ITS AFFILIATES OR
SUBSIDIARIES SHALL BE LIABLE TO ANY OTHER PARTY HERETO OR ANY 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 SECOND STEP FEE LETTER, THE TERM
SHEETS, THE SECOND STEP FACILITIES, THE LOANS THEREUNDER AND THE USE OF PROCEEDS
THEREFROM, ANY OF THE SECOND 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 SECOND STEP FACILITIES.
NOTWITHSTANDING ANY
OTHER PROVISION OF THIS AMENDED AND RESTATED 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, 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.
7
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 SHEETS, THE SECOND STEP FEE LETTER AND THE
OPERATIVE DOCUMENTS 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
SECOND STEP TRANSACTIONS