Common use of Indemnification Damage Waiver Clause in Contracts

Indemnification Damage Waiver. (a) The Loan Parties, jointly and severally, and without limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the costs of preparation and attorneys’ fees and expenses) (collectively, the “Losses”) incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party contained in any of the Loan Documents or (iii) any investigation or proceeding against a Loan Party or any Indemnified Party and arising out of or in connection with this Agreement or any of the Loan Documents, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or willful misconduct. Each Loan Party agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the Loan Parties for any payments made by the Loan Parties to the Lenders pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenders. The obligations of the Loan Parties under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties shall not relieve the Loan Parties from their obligations hereunder except to the extent the Loan Parties are prejudiced thereby. The Loan Parties shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties have failed to assume the defense and employ counsel as provided herein, (ii) the Loan Parties have agreed in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party and representation of both such Loan Parties and/or the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties shall be responsible for the reasonable fees and expenses of such separate counsel; provided, however, that the Loan Parties shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified Parties. The Loan Parties shall be liable only for settlement of any claim against an Indemnified Party made with the Loan Parties’ written consent. (c) To the fullest extent permitted by applicable law, the Loan Parties shall not assert, and hereby waive, any claim against any Indemnified Party, 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, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

Indemnification Damage Waiver. (a) The Loan PartiesBorrower, jointly and severally, and without limitation as to time, will defend and indemnify the Agent, the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “"Indemnified Party”") against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, reasonable out-of-pocket costs (including the reasonable out-of-pocket costs of preparation and reasonable out-of-pocket attorneys’ ' fees and expensesexpenses of one law firm acting as outside counsel to the Indemnified Parties, as a group (except to the extent there are conflicts in the interests of the Indemnified Parties)) (collectively, the “"Losses”") incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any a Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any a Loan Party contained in any of the Loan Transaction Documents or (iii) any government investigation or proceeding against a Loan Party or any Indemnified Party and arising out of or in connection with this Agreement or any of the Loan Transaction Documents, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Transaction Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly (x) a result of such party’s 's gross negligence or willful or intentional misconduct. Each , or (y) a result from a claim brought by any Loan Party or any Subsidiary thereof against an Indemnified Party for breach in bad faith of such Indemnified Party's obligations hereunder or under any other Loan Document. The Borrower agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the Loan Parties for any payments made by the Loan Parties to the Lenders pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenders. The obligations of the Loan Parties Borrower under this paragraph will survive any transfer of the Notes Loans by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or government investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties Borrower with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties Borrower shall not relieve the Loan Parties Borrower from their its obligations hereunder except to the extent the Loan Parties are Borrower is prejudiced thereby. The Loan Parties Borrower shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties have Borrower has failed within a reasonable time to assume the defense and employ counsel as provided herein, (ii) the Loan Parties have agreed Borrower has failed within a reasonable time to agree in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party the Borrower and representation of both such Loan Parties and/or the Borrower and the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties Borrower shall be responsible for the reasonable out-of-pocket fees and expenses of such separate counsel; provided, however, that that, absent a conflict of interest among Indemnified Parties, the Loan Parties Borrower shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified PartiesParties as a group. The Loan Parties Borrower shall be liable only for settlement of any claim against an Indemnified Party made with the Loan Parties’ Borrower's written consent. (c) To the fullest extent permitted by applicable lawLaw, the Loan Parties parties hereto shall not assert, and hereby waive, any claim against any Indemnified PartyParty or any party hereto, 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, this Agreement, any other Loan Transaction Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Transaction Documents or the transactions contemplated hereby or thereby.

Indemnification Damage Waiver. (a) The Loan Parties, jointly and severally, and without limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “"Indemnified Party”") against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the costs of preparation and attorneys’ ' fees and expenses) (collectively, the “"Losses”") incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party contained in any of the Loan Documents or (iii) any investigation or proceeding against a Loan Party or any Indemnified Party and arising out of or in connection with this Agreement or any of the Loan Documents, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Transaction Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s 's gross negligence or willful misconduct. Each Loan Party agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree agrees to reimburse the Loan Parties Borrower for any payments made by the Loan Parties Borrower to the Lenders pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenders. The obligations of the Loan Parties under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s 's Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties Borrower and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties Borrower with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties Borrower shall not relieve the Loan Parties from their obligations hereunder except to the extent the Loan Parties Borrower are prejudiced thereby. The Loan Parties shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties have failed to assume the defense and employ counsel as provided herein, (ii) the Loan Parties have agreed in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party and representation of both such Loan Parties and/or and the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties shall be responsible for the reasonable fees and expenses of such separate counsel; provided, however, that the Loan Parties Borrower shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified Parties. The Loan Parties shall be liable only for settlement of any claim against an Indemnified Party made with the Loan Parties’ ' written consent. (c) To the fullest extent permitted by applicable law, the Loan Parties Borrower shall not assert, and hereby waivewaives, any claim against any Indemnified PartyIndemnitee, 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, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

Indemnification Damage Waiver. (a) The Loan Parties, jointly and severally, and without limitation as to time, will defend and indemnify the Agent (including acting in its role as Paying Agent), the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the costs of preparation and attorneys’ fees and expenses) (collectively, the “Losses”) incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party contained in any of the Loan Documents or (iii) any investigation or proceeding against a Loan Party or any Indemnified Party and arising out of or in connection with this Agreement or any of the Loan Documents, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Transaction Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or willful misconduct. Each Loan Party agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the Loan Parties Borrowers for any payments made by the Loan Parties Borrowers to the Lenders pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenders. The obligations of the Loan Parties under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties Borrowers and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties Borrowers with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties Borrowers shall not relieve the Loan Parties from their obligations hereunder except to the extent the Loan Parties Borrowers are prejudiced thereby. The Loan Parties shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties have failed to assume the defense and employ counsel as provided herein, (ii) the Loan Parties have agreed in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party and representation of both such Loan Parties and/or and the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties shall be responsible for the reasonable fees and expenses of such separate counsel; provided, however, that the Loan Parties Borrowers shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified Parties. The Loan Parties shall be liable only for settlement of any claim against an Indemnified Party made with the Loan Parties’ written consent. (c) To the fullest extent permitted by applicable law, the Loan Parties shall not assert, and hereby waive, any claim against any Indemnified Party, 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, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

Indemnification Damage Waiver. (a) The Loan Parties, jointly and severally, and without limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “"Indemnified Party”") against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the costs of preparation and attorneys’ fees and expenses) (collectively, the “"Losses”") incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party contained in any of the Loan Documents or (iii) any investigation or proceeding against a Loan Party or any Indemnified Party and arising out of or in connection with this Agreement or any of the Loan Documents, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Transaction Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or willful misconduct. Each Loan Party agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree agrees to reimburse the Loan Parties Borrower for any payments made by the Loan Parties Borrower to the Lenders pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenders. The obligations of the Loan Parties under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties Borrower and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties Borrower with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties Borrower shall not relieve the Loan Parties from their obligations hereunder except to the extent the Loan Parties Borrower are prejudiced thereby. The Loan Parties shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties have failed to assume the defense and employ counsel as provided herein, (ii) the Loan Parties have agreed in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party and representation of both such Loan Parties and/or and the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties shall be responsible for the reasonable fees and expenses of such separate counsel; provided, however, that the Loan Parties Borrower shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified Parties. The Loan Parties shall be liable only for settlement of any claim against an Indemnified Party made with the Loan Parties’ written consent. (c) To the fullest extent permitted by applicable law, the Loan Parties Borrower shall not assert, and hereby waivewaives, any claim against any Indemnified PartyIndemnitee, 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, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

Indemnification Damage Waiver. (a) The Loan PartiesCompany, jointly and severally, and without limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the costs of preparation and attorneys’ fees and expenses) (collectively, the “Losses”) incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party Company herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party Company contained in any of the Loan Documents or (iii) any investigation or proceeding against a Loan Party Company or any Indemnified Party and arising out of or in connection with this Agreement or any of the Loan Documents, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Operative Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or willful misconduct. Each Loan Party The Company agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the Loan Parties Company for any payments made by the Loan Parties Company to the Lenders pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenders. The obligations of the Loan Parties Company under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties Company will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties Company and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties Company with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties Company shall not relieve the Loan Parties Company from their obligations hereunder except to the extent the Loan Parties are Company is materially prejudiced thereby. The Loan Parties Company shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties have Company has failed to assume the defense and employ counsel as provided herein, (ii) the Loan Parties have Company has agreed in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party the Company and representation of both such Loan Parties and/or Company and the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties Company shall be responsible for the reasonable fees and expenses of such separate counsel; provided, however, that the Loan Parties Company shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified Parties. The Loan Parties Company shall be liable only for settlement of any claim against an Indemnified Party made with the Loan Parties’ Company’s written consentconsent (which consent shall not be unreasonably withheld or delayed). (c) To the fullest extent permitted by applicable law, the Loan Parties Company shall not assert, and hereby waive, any claim against any Indemnified Party, 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, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

Indemnification Damage Waiver. (a) The Loan PartiesBorrowers, jointly and severally, and without limitation as to time, will defend and indemnify the Lenders Agent, the Lenders, their Affiliates and each of their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the costs of preparation and attorneys’ fees and expenses) (collectively, the “Losses”) incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party Borrower herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party Borrower contained in any of the Loan Documents or Documents, (iii) any investigation investigation, litigation or proceeding against a Loan Party Borrower or any Indemnified Party and arising out of or in connection with this Agreement or Agreement, any of the Loan Documents, the Interim DIP Financing Order, the Final DIP Financing Order, the Pre-Petition Loan Agreements, any other loan or extension of credit made to a Borrower by an Indemnified Party, any equity ownership in a Borrower held by an Indemnified Party, or otherwise, whether or not the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the participation of, or is commenced or filed against, any Indemnified Party because of this Agreement, any other Loan Document or such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such partyIndemnified Party’s gross negligence or willful misconduct. Each Loan Party Borrower agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree Each Indemnified Party agrees to reimburse the Loan Parties Borrowers for any payments made by the Loan Parties Borrowers to the Lenders such Indemnified Party pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of the Lenderssuch Indemnified Party. The obligations of the Loan Parties Borrowers under this paragraph will survive any transfer of the Notes Loans by the Lenders and the termination of this Agreement, the Interim DIP Financing Order, the Final DIP Financing Order, any Pre-Petition Loan Agreement or any other agreement related to the indemnification provided hereunder. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties Borrowers will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as appropriately reflect the relative benefits received by and fault of the Loan Parties Borrowers and such Indemnified Party in connection with the matters as to which such Losses relate and other equitable considerations. (b) If any action, proceeding or investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Loan Parties Borrowers with reasonable promptness; provided, however, that any failure by such Indemnified Party to notify the Loan Parties Borrowers shall not relieve the Loan Parties Borrowers from their obligations hereunder except to the extent the Loan Parties Borrowers are prejudiced thereby. The Loan Parties Borrowers shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. The Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party, unless (i) the Loan Parties Borrowers have failed to assume the defense and employ counsel as provided herein, (ii) the Loan Parties Borrowers have agreed in writing to pay such fees and expenses of separate counsel or (iii) an action, proceeding, or investigation has been commenced against both the Indemnified Party and/or a Loan Party Borrower and representation of both such Loan Parties and/or Borrowers and the Indemnified Party by the same counsel would be inappropriate because of actual or potential conflicts of interest between the parties. In the case of any circumstance described in clauses (i), (ii) or (iii) of the immediately preceding sentence, the Loan Parties Borrowers shall be responsible for the reasonable fees and expenses of such separate counsel; provided, however, that the Loan Parties Borrowers shall not in any event be required to pay the fees and expenses of more than one separate counsel (and, if deemed necessary by such separate counsel, appropriate local counsel who shall report to such separate counsel) for all Indemnified Parties. The Loan Parties Borrowers shall be liable only for settlement of any claim against an Indemnified Party made with the Loan PartiesBorrowers’ written consent. (c) To the fullest extent permitted by applicable law, the Loan Parties Borrowers shall not assert, and hereby waive, any claim or cause of action against any Indemnified Party, 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, this Agreement, any other Loan Document Document, the Interim DIP Financing Order or the Final DIP Financing Order, any agreement or instrument contemplated hereby, the Pre-Petition Loan Agreements, any other loan or extension of credit made to a Borrower by an Indemnified Party, any equity ownership in a Borrower held by an Indemnified Party, the transactions contemplated hereby or thereby, or the use of the proceeds thereofLoan proceeds, or otherwise, including all claims and causes of action (i) for special, indirect, consequential or punitive damages (as opposed to direct or actual damages), (ii) for preference, fraudulent conveyance or other claims arising under the Bankruptcy Code, (iii) regarding the validity, priority, perfection or avoidability of the secured claims of the Agent and the Lenders or the Pre-Petition Agents and the Pre-Petition Lenders and (iv) under or with respect to either Pre-Petition Loan Agreement (or related loan documents) or any other financing arrangement entered into or contemplated prior to the Filing Date. No Indemnified Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.