Common use of Liability of Exchange Agent; Indemnification Clause in Contracts

Liability of Exchange Agent; Indemnification. The Exchange Agent and its officers, directors, employees, agents, contractors, subsidiaries and affiliates shall not be liable for any action taken or suffered by the Exchange Agent or such agent of the Exchange Agent in good faith in accordance with the Exchange Offer, this Exchange Agreement, the Exchange Documents or the instructions of any Authorized Representative, the Company or the Company's counsel, other than any liability arising out of the gross negligence, willful misconduct or bad faith of the Exchange Agent. THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY, JOINTLY AND SEVERALLY, COVENANTS AND AGREES TO INDEMNITY AND HOLD THE EXCHANGE AGENT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUBSIDIARIES AND AFFILIATES HARMLESS FROM AND AGAINST ANY FEES, COSTS, EXPENSES (INCLUDING REASONABLE EXPENSES OF LEGAL COUNSEL), LOSSES, LIABILITIES, CLAIMS OR DAMAGES (COLLECTIVELY THE "INDEMNIFIED LIABILITIES"), WHICH WITHOUT GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH ON ITS PART, MAY BE PAID, INCURRED OR SUFFERED BY IT, OR TO WHICH IT MAY BECOME SUBJECT BY REASON OF OR AS A RESULT OF THE PREPARATION OF THIS EXCHANGE AGREEMENT, THE REVIEW AND ADMINISTRATION OF ANY OTHER EXCHANGE DOCUMENTS OR THE ADMINISTRATION OR PERFORMANCE OF THE EXCHANGE AGENT'S DUTIES HEREUNDER OR UNDER ANY EXCHANGE DOCUMENT, OR BY REASON OF OR AS A RESULT OF THE EXCHANGE AGENT'S COMPLIANCE WITH THE INSTRUCTIONS SET FORTH HEREIN OR WITH ANY WRITTEN OR ORAL INSTRUCTION DELIVERED TO IT PURSUANT HERETO, OR AS A RESULT OF DEFENDING ITSELF AGAINST ANY

Liability of Exchange Agent; Indemnification. The Exchange Agent and its officers, directors, employees, agents, contractors, subsidiaries and affiliates shall not be liable for any action taken or suffered by the Exchange Agent or such agent of the Exchange Agent reasonably and in good faith in accordance with the Exchange Offer, this Exchange Agreement, the Exchange Documents or the instructions of any Authorized Representative, the Company or the Company's counsel, other than any liability arising out of the gross negligence, willful misconduct or bad faith of the Exchange AgentAgent or such other persons or entities. THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLYThe Company hereby covenants and agrees to indemnify and hold the Exchange Agent and its officers, JOINTLY AND SEVERALLYdirectors, COVENANTS AND AGREES TO INDEMNITY AND HOLD THE EXCHANGE AGENT AND ITS OFFICERSemployees, DIRECTORSagents, EMPLOYEESsubsidiaries and affiliates harmless from and against any fees, AGENTScosts, CONTRACTORS, SUBSIDIARIES AND AFFILIATES HARMLESS FROM AND AGAINST ANY FEES, COSTS, EXPENSES expenses (INCLUDING REASONABLE EXPENSES OF LEGAL COUNSELincluding reasonable expenses of legal counsel), LOSSESlosses, LIABILITIESliabilities, CLAIMS OR DAMAGES claims or damages (COLLECTIVELY THE collectively the "INDEMNIFIED LIABILITIESIndemnified Liabilities"), WHICH WITHOUT GROSS NEGLIGENCEwhich without negligence, WILLFUL MISCONDUCT OR BAD FAITH ON ITS PARTwillful misconduct or bad faith on its part or the part of any other such persons or entities, MAY BE PAIDmay be paid, INCURRED OR SUFFERED BY ITincurred or suffered by it, OR TO WHICH IT MAY BECOME SUBJECT BY REASON OF OR AS A RESULT OF THE PREPARATION OF THIS EXCHANGE AGREEMENTor to which it may become subject, THE REVIEW AND ADMINISTRATION OF ANY OTHER EXCHANGE DOCUMENTS OR THE ADMINISTRATION OR PERFORMANCE OF THE EXCHANGE AGENT'S DUTIES HEREUNDER OR UNDER ANY EXCHANGE DOCUMENTin any such case by reason of or as a result of the administration or performance of the Exchange Agent's duties hereunder or under any Exchange Document, OR BY REASON OF OR AS A RESULT OF THE EXCHANGE AGENT'S COMPLIANCE WITH THE INSTRUCTIONS SET FORTH HEREIN OR WITH ANY WRITTEN OR ORAL INSTRUCTION DELIVERED TO IT PURSUANT HERETOor by reason of or as a result of the Exchange Agent's compliance with the instructions set forth herein or with any written or oral instruction delivered to it in accordance with the terms hereof, OR AS A RESULT OF DEFENDING ITSELF AGAINST ANYor as a result of defending itself against any claim or liability resulting from its actions as Exchange Agent hereunder or under any of the Exchange Documents, including any claim against the Exchange Agent by any Holder, beneficial owner or other person or entity. To the extent any indemnity contained herein is contrary to or unenforceable under applicable law, the Company hereby agrees to contribute to the Exchange Agent the maximum amount of the Indemnified Liabilities permitted under applicable law. The Exchange Agent shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim. In no case shall the Company be liable under this indemnity with respect to any claim against the Exchange Agent or any other indemnified person or entity unless the Company shall be notified by the Exchange Agent, by letter or by facsimile confirmed by letter, of the assertion of a claim against the Exchange Agent or any other indemnified person or entity or any other action commenced against the Exchange Agent or any other indemnified person or entity, promptly after the Exchange Agent or any other indemnified person or entity shall have become aware of such assertion or received notice of commencement of such action. The Company shall be entitled to participate at its own expense in the defense of any such claim or other action, and, if the Company so elects, the Company shall assume the defense of any pending or threatened suit brought to enforce any such claim. In the event that the Company shall assume the defense of any such suit, the Company shall not be liable for any subsequently incurred fees and expenses of any counsel retained by the Exchange Agent or any other indemnified person or entity so long as the Company shall retain counsel reasonably satisfactory to the Exchange Agent to defend such suit, and so long as the Exchange Agent has not determined, in the Exchange Agent's reasonable judgment, based upon the advice of counsel, that a conflict of interest exists between the Exchange Agent and the Company. Notwithstanding anything herein to the contrary, the Exchange Agent shall not enter into any settlement or other compromise with respect to any losses, liabilities, costs or expenses for which the Exchange Agent or any other indemnified party is seeking indemnification hereunder without the prior written consent of the Company, which shall not be unreasonably withheld or delayed.

Liability of Exchange Agent; Indemnification. The Exchange Agent and its -------------------------------------------- officers, directors, employees, agents, contractors, subsidiaries and affiliates shall not be liable for any action taken or suffered by the Exchange Agent or such agent of the Exchange Agent in good faith in accordance with the Exchange Offer, this Exchange Agreement, the Exchange Documents or the instructions of any Authorized Representative, the Company or the Company's counsel, other than any liability arising out of the gross negligence, willful misconduct or bad faith of the Exchange Agent. THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLYThe Company hereby irrevocably and unconditionally covenants and agrees to indemnify and hold the Exchange Agent and its officers, JOINTLY AND SEVERALLYdirectors, COVENANTS AND AGREES TO INDEMNITY AND HOLD THE EXCHANGE AGENT AND ITS OFFICERSemployees, DIRECTORSagents, EMPLOYEEScontractors, AGENTSsubsidiaries and affiliates harmless from and against any fees, CONTRACTORScosts, SUBSIDIARIES AND AFFILIATES HARMLESS FROM AND AGAINST ANY FEES, COSTS, EXPENSES expenses (INCLUDING REASONABLE EXPENSES OF LEGAL COUNSELincluding reasonable expenses of legal counsel), LOSSESlosses, LIABILITIESliabilities, CLAIMS OR DAMAGES claims or damages (COLLECTIVELY THE collectively the "INDEMNIFIED LIABILITIESIndemnified Liabilities"), WHICH WITHOUT GROSS NEGLIGENCEwhich without negligence, WILLFUL MISCONDUCT OR BAD FAITH ON ITS PARTwillful misconduct or bad faith on its part, MAY BE PAIDmay be paid, INCURRED OR SUFFERED BY ITincurred or suffered by it, OR TO WHICH IT MAY BECOME SUBJECT BY REASON OF OR AS A RESULT OF THE PREPARATION OF THIS EXCHANGE AGREEMENTor to which it may become subject by reason of or as a result of the preparation of this Exchange Agreement, THE REVIEW AND ADMINISTRATION OF ANY OTHER EXCHANGE DOCUMENTS OR THE ADMINISTRATION OR PERFORMANCE OF THE EXCHANGE AGENT'S DUTIES HEREUNDER OR UNDER ANY EXCHANGE DOCUMENTthe review and administration of any other Exchange Documents or the administration or performance of the Exchange Agent's duties hereunder or under any Exchange Document, OR BY REASON OF OR AS A RESULT OF THE EXCHANGE AGENT'S COMPLIANCE WITH THE INSTRUCTIONS SET FORTH HEREIN OR WITH ANY WRITTEN OR ORAL INSTRUCTION DELIVERED TO IT PURSUANT HERETOor by reason of or as a result of the Exchange Agent's compliance with the instructions set forth herein or with any written or oral instruction delivered to it pursuant hereto, OR AS A RESULT OF DEFENDING ITSELF AGAINST ANYor as a result of defending itself against any claim or liability resulting from its actions as Exchange Agent hereunder or under any of the Exchange Documents, including any claim against the Exchange Agent by any Holder, beneficial owner or other person or entity. To the extent any indemnity contained herein is contrary to or unenforceable under applicable law, the Company hereby agrees to contribute to the Exchange Agent the maximum amount of the Indemnified Liabilities permitted under applicable law. The Exchange Agent shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim. All amounts due to the Exchange Agent hereunder shall constitute expenses of administration under any Bankruptcy Law (as defined in the Indenture). In no case shall the Company be liable under this indemnity with respect to any claim against the Exchange Agent unless the Company shall be notified by the Exchange Agent, by letter or by facsimile confirmed by letter, of the written assertion of a claim against the Exchange Agent or any other action commenced against the Exchange Agent, promptly after the Exchange Agent shall have received any such written assertion or notice of commencement of action. The Company shall be entitled to participate at its own expense in the defense of any such claim or other action, and, if the Company so elects, the Company shall assume the defense of any suit brought to enforce any such claim. In the event that the Company shall assume the defense of any such suit, the Company shall not be liable for the fees and expenses of any additional counsel thereafter retained by the Exchange Agent so long as the Company shall retain counsel satisfactory to the Exchange Agent to defend such suit, and so long as the Exchange Agent has not determined, in the Exchange Agent's reasonable judgment, that a conflict of interest exists between the Exchange Agent and the Company.

Liability of Exchange Agent; Indemnification. The Exchange Agent and its officers, directors, employees, agents, contractors, subsidiaries and affiliates shall not be liable for any action taken or suffered by the Exchange Agent or such agent of the Exchange Agent in good faith in accordance with the Exchange Offer, this Exchange Agreement, the Exchange Documents or the instructions of any Authorized Representative, the Company or the Company's counsel, other than any liability arising out of the gross negligence, willful misconduct or bad faith of the Exchange Agent. THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLYThe Company hereby irrevocably and unconditionally, JOINTLY AND SEVERALLYjointly and severally, COVENANTS AND AGREES TO INDEMNITY AND HOLD THE EXCHANGE AGENT AND ITS OFFICERScovenants and agrees to indemnify and hold the Exchange Agent and its officers, DIRECTORSdirectors, EMPLOYEESemployees, AGENTSagents, CONTRACTORScontractors, SUBSIDIARIES AND AFFILIATES HARMLESS FROM AND AGAINST ANY FEESsubsidiaries and affiliates harmless from and against any fees, COSTScosts, EXPENSES expenses (INCLUDING REASONABLE EXPENSES OF LEGAL COUNSELincluding reasonable expenses of legal counsel), LOSSESlosses, LIABILITIESliabilities, CLAIMS OR DAMAGES claims or damages (COLLECTIVELY THE collectively the "INDEMNIFIED LIABILITIESIndemnified Liabilities"), WHICH WITHOUT GROSS NEGLIGENCEwhich without gross negligence, WILLFUL MISCONDUCT OR BAD FAITH ON ITS PARTwillful misconduct or bad faith on its part, MAY BE PAIDmay be paid, INCURRED OR SUFFERED BY ITincurred or suffered by it, OR TO WHICH IT MAY BECOME SUBJECT BY REASON OF OR AS A RESULT OF THE PREPARATION OF THIS EXCHANGE AGREEMENTor to which it may become subject by reason of or as a result of the preparation of this Exchange Agreement, THE REVIEW AND ADMINISTRATION OF ANY OTHER EXCHANGE DOCUMENTS OR THE ADMINISTRATION OR PERFORMANCE OF THE EXCHANGE AGENT'S DUTIES HEREUNDER OR UNDER ANY EXCHANGE DOCUMENTthe review and administration of any other Exchange Documents or the administration or performance of the Exchange Agent's duties hereunder or under any Exchange Document, OR BY REASON OF OR AS A RESULT OF THE EXCHANGE AGENT'S COMPLIANCE WITH THE INSTRUCTIONS SET FORTH HEREIN OR WITH ANY WRITTEN OR ORAL INSTRUCTION DELIVERED TO IT PURSUANT HERETOor by reason of or as a result of the Exchange Agent's compliance with the instructions set forth herein or with any written or oral instruction delivered to it pursuant hereto, OR AS A RESULT OF DEFENDING ITSELF AGAINST ANYor as a result of defending itself against any claim or liability resulting from its actions as Exchange Agent hereunder or under any of the Exchange Documents, including any claim against the Exchange Agent by any Holder or any beneficial owner of a Note or any other person or entity; the foregoing indemnity is specifically intended to include any negligent action on the Exchange Agent's part taken without gross negligence, willful misconduct or bad faith. To the extent any indemnity contained herein is contrary to or unenforceable under applicable law, the Company hereby agrees to contribute to the Exchange Agent the maximum amount of the Indemnified Liabilities permitted under applicable law. The Exchange Agent shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim. All amounts due to the Exchange Agent hereunder shall constitute expenses of administration under any Bankruptcy Law (as defined in the Indenture).

Liability of Exchange Agent; Indemnification. The Exchange Agent and its officers, directors, employees, agents, contractors, subsidiaries and affiliates shall not be liable for any action taken or suffered by the Exchange Agent or such agent of the Exchange Agent reasonably and in good faith in accordance with the Exchange Offer, this Exchange Agreement, the Exchange Documents or the instructions of any Authorized Representative, the Company or the Company's counsel, other than any liability arising out of the gross negligence, willful misconduct or bad faith of the Exchange AgentAgent or such other persons or entities. THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLYThe Company hereby covenants and agrees to indemnify and hold the Exchange Agent and its officers, JOINTLY AND SEVERALLYdirectors, COVENANTS AND AGREES TO INDEMNITY AND HOLD THE EXCHANGE AGENT AND ITS OFFICERSemployees, DIRECTORSagents, EMPLOYEESsubsidiaries and affiliates harmless from and against any fees, AGENTScosts, CONTRACTORS, SUBSIDIARIES AND AFFILIATES HARMLESS FROM AND AGAINST ANY FEES, COSTS, EXPENSES expenses (INCLUDING REASONABLE EXPENSES OF LEGAL COUNSELincluding reasonable expenses of legal counsel), LOSSESlosses, LIABILITIESliabilities, CLAIMS OR DAMAGES claims or damages (COLLECTIVELY THE collectively the "INDEMNIFIED LIABILITIESIndemnified Liabilities"), WHICH WITHOUT GROSS NEGLIGENCEwhich without negligence, WILLFUL MISCONDUCT OR BAD FAITH ON ITS PARTwillful misconduct or bad faith on its part or the part of any other such persons or entities, MAY BE PAIDmay be paid, INCURRED OR SUFFERED BY ITincurred or suffered by it, OR TO WHICH IT MAY BECOME SUBJECT BY REASON OF OR AS A RESULT OF THE PREPARATION OF THIS EXCHANGE AGREEMENTor to which it may become subject, THE REVIEW AND ADMINISTRATION OF ANY OTHER EXCHANGE DOCUMENTS OR THE ADMINISTRATION OR PERFORMANCE OF THE EXCHANGE AGENT'S DUTIES HEREUNDER OR UNDER ANY EXCHANGE DOCUMENTin any such case by reason of or as a result of the preparation of this Exchange Agreement, OR BY REASON OF OR AS A RESULT OF THE EXCHANGE AGENT'S COMPLIANCE WITH THE INSTRUCTIONS SET FORTH HEREIN OR WITH ANY WRITTEN OR ORAL INSTRUCTION DELIVERED TO IT PURSUANT HERETOthe review and administration of any other Exchange Documents or the administration or performance of the Exchange Agent's duties hereunder or under any Exchange Document, OR AS A RESULT OF DEFENDING ITSELF AGAINST ANYor by reason of or as a result of the Exchange Agent's compliance with the instructions set forth herein or with any written or oral instruction delivered to it in accordance with the terms hereof, or as a result of defending itself against any claim or liability resulting from its actions as Exchange Agent hereunder or under any of the Exchange Documents, including any claim against the Exchange Agent by any Holder, beneficial owner or other person or entity. To the extent any indemnity contained herein is contrary to or unenforceable under applicable law, the Company hereby agrees to contribute to the Exchange Agent the maximum amount of the Indemnified Liabilities permitted under applicable law. The Exchange Agent shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim. In no case shall the Company be liable under this indemnity with respect to any claim against the Exchange Agent or any other indemnified person or entity unless the Company shall be notified by the Exchange Agent, by letter or by facsimile confirmed by letter, of the assertion of a claim against the Exchange Agent or any other indemnified person or entity or any other action commenced against the Exchange Agent or any other indemnified person or entity, promptly after the Exchange Agent or any other indemnified person or entity shall have become aware of such assertion or received notice of commencement of such action. The Company shall be entitled to participate at its own expense in the defense of any such claim or other action, and, if the Company so elects, the Company shall assume the defense of any pending or threatened suit brought to enforce any such claim. In the event that the Company shall assume the defense of any such suit, the Company shall not be liable for any subsequently incurred fees and expenses of any counsel retained by the Exchange Agent or any other indemnified person or entity so long as the Company shall retain counsel reasonably satisfactory to the Exchange Agent to defend such suit, and so long as the Exchange Agent has not determined, in the Exchange Agent's reasonable judgment, based upon the advice of counsel, that a conflict of interest exists between the Exchange Agent and the Company. Notwithstanding anything herein to the contrary, the Exchange Agent shall not enter into any settlement or other compromise with respect to any losses, liabilities, costs or expenses for which the Exchange Agent or any other indemnified party is seeking indemnification hereunder without the prior written consent of the Company, which shall not be unreasonably withheld or delayed.