Common use of Fees and Expenses; Indemnities Clause in Contracts

Fees and Expenses; Indemnities. (a) Each Loan Party agrees to pay, on demand by Bank, the costs and expenses of Bank in connection with the closing, administration, enforcement and collection of the LMA account, and/or the disposition of the Securities Account or any other collateral under this Agreement, and the documents executed in connection herewith, whether in any action, suit, litigation, in each case, including, without limitation, the reasonable fees and expenses of counsel and other professionals for Bank with respect thereto. (b) Each Loan Party, jointly and severally, agrees to indemnify and hold harmless Bank and each of the members of the Bank of America Group and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and to reimburse each Indemnified Party, upon its demand, for, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel and other professionals and any filing or registration fees, taxes or similar costs imposed on the Indemnified Parties with respect to this Agreement, the LMA account, or any Advance) that may be incurred by or asserted or awarded against any Indemnified Party or to which any Indemnified Party may become subject, in each case arising out of or in connection with or by reason of, directly or indirectly, this Agreement, the LMA account, any document or instrument delivered in connection herewith, or the transactions contemplated hereby, or any Advance, whether or not such investigation, litigation or proceeding is brought by any Loan Party or its directors, shareholders, trustees or creditors or an Indemnified Party or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except to the extent such claim, damage, loss, liability or expense is found in a final judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. Each Loan Party further agrees that no Indemnified Party shall have any liability to any Loan Party for special, indirect, consequential or punitive damages arising out of or otherwise relating to any of the transactions contemplated herein or in any other document executed in connection herewith or the actual or proposed use of the proceeds of the Advances, except for damages to the extent determined in a final judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. No Loan Party shall interpose any defense to the payment of the Obligations based upon any statute of limitations. No provision in this Agreement or in any other document executed in connection herewith and no course of dealing among the parties shall be deemed to create any fiduciary duty by Bank to any Loan Party.

Fees and Expenses; Indemnities. (a) Each Loan Party agrees to pay, on demand by Bank, the costs and expenses of Bank in connection with the closing, administration, enforcement and collection of the LMA account, and/or the disposition of the Securities Account or any other collateral under this Agreement, and the documents executed in connection herewith, whether in any action, suit, litigation, in each case, including, without limitation, the reasonable fees and expenses of counsel and other professionals for Bank with respect thereto. (b) Each Loan Party, jointly and severally, agrees to indemnify and hold harmless Bank and each of the members of the Bank of America Group and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and to reimburse each Indemnified Party, upon its demand, for, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel and other professionals and any filing or registration fees, taxes or similar costs imposed on the Indemnified Parties with respect to this Agreement, the LMA account, or any Advance) that may be incurred by or asserted or awarded against any Indemnified Party or to which any Indemnified Party may become subject, in each case arising out of or in connection with or by reason of, directly or indirectly, this Agreement, the LMA account, any document or instrument delivered in connection herewith, or the transactions contemplated hereby, or any Advance, whether or not such investigation, litigation or proceeding is brought by any Loan Party or its directors, shareholders, trustees or creditors or an Indemnified Party or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except to the extent such claim, damage, loss, liability or expense is found in a final judgment by a court of competent jurisdiction to have resulted from such Indemnified Retain for your records. Revised 12/2009 Party’s gross negligence or willful misconduct. Each Loan Party further agrees that no Indemnified Party shall have any liability to any Loan Party for special, indirect, consequential or punitive damages arising out of or otherwise relating to any of the transactions contemplated herein or in any other document executed in connection herewith or the actual or proposed use of the proceeds of the Advances, except for damages to the extent determined in a final judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. No Loan Party shall interpose any defense to the payment of the Obligations based upon any statute of limitations. No provision in this Agreement or in any other document executed in connection herewith and no course of dealing among the parties shall be deemed to create any fiduciary duty by Bank to any Loan Party.

Fees and Expenses; Indemnities. (a) Each Loan Party 14.1.1. The Company agrees to pay, on demand by Bank, reimburse the costs and expenses of Bank in connection with the closing, administration, enforcement and collection of the LMA account, and/or the disposition of the Securities Account or any other collateral under this Agreement, and the documents executed in connection herewith, whether in any action, suit, litigation, in each case, including, without limitation, the reasonable Chargee for its fees and expenses incurred hereunder as provided in Section 9.03(a) of counsel and other professionals for Bank with respect theretothe Credit Agreement; provided that each reference therein to the “Borrower” shall be deemed to be a reference to the “Company”. (b) Each 14.1.2. The parties to this Debenture agree that a reference in this Clause 14 to an “Indemnitee” shall include a reference to a Receiver and its officers and employees. 14.1.3. Without limitation of its indemnification obligations under the other Loan PartyDocuments, jointly and severally, the Company agrees to indemnify the Chargee and hold harmless Bank and each of the members of the Bank of America Group and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and other Indemnitees against, and to reimburse hold each Indemnified Party, upon its demand, forIndemnitee harmless from, any and all losses, claims, damages, losses, liabilities and expenses (includingrelated expenses, without limitation, including the reasonable fees and expenses of counsel and other professionals and any filing or registration fees, taxes or similar costs imposed on the Indemnified Parties with respect to this Agreementcharges and disbursements of any counsel for any Indemnitee, the LMA account, or any Advance) that may be incurred by or asserted or awarded against any Indemnified Party Indemnitee by any third party or to which by Holdings or any Indemnified Party may become subjectSubsidiary arising out of, in each case arising out connection with, or as a result of, the execution, delivery or performance of this Debenture or in connection with any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether brought by a third party or by reason of, directly or indirectly, this Agreement, the LMA account, any document or instrument delivered in connection herewith, or the transactions contemplated hereby, Holdings or any Advance, Subsidiary and regardless of whether or not such investigation, litigation or proceeding any Indemnitee is brought by any Loan Party or its directors, shareholders, trustees or creditors or an Indemnified Party or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummatedthereto; provided that such indemnity shall not, except as to any Indemnitee, be available to the extent that such claimlosses, damageclaims, lossdamages, liability liabilities or expense is found in a final judgment related expenses are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from such Indemnified Party’s the gross negligence or willful misconductwilful misconduct of, or a breach of the Loan Documents by, such Indemnitee or its Related Parties. 14.1.4. Each Loan Party further agrees To the fullest extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), provided that no Indemnified Party such indemnity shall have any liability not, as to any Indemnitee, be available to the extent that such damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the gross negligence or wilful misconduct of, or a breach of the Loan Party Documents by, such Indemnitee or its Related Parties, or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated thereby, the Transactions, any Loan or Letter of Credit or otherwise relating to the use of the proceeds thereof. 14.1.5. The provisions of this Clause 14 shall remain operative and in full force and effect regardless of the termination of this Debenture or any other Loan Document, the consummation of the transactions contemplated herein hereby or in thereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Debenture or any other document executed in connection herewith Loan Document, or the actual any investigation made by or proposed use on behalf of the proceeds of the Advancesany Secured Party. All amounts due under this Clause 14 shall be payable not later than 10 Business Days after written demand therefor; provided, except for damages however, any Indemnitee shall promptly refund an indemnification payment received hereunder to the extent determined in that there is a final judgment by a court of competent jurisdiction judicial determination that such Indemnitee was not entitled to have resulted from indemnification with respect to such Indemnified Party’s gross negligence or willful misconductpayment pursuant to Clause 14.1. No Loan Party shall interpose any defense to the payment of the Obligations based upon any statute of limitations. No provision in this Agreement or in any other document executed in connection herewith and no course of dealing among the parties Any such amounts payable as provided hereunder shall be deemed to create any fiduciary duty by Bank to any Loan Partyadditional Secured Obligations.