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<br />200806452
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<br />(b) The Company hereby agrees to indemnify and hold the Trustee and its
<br />directors, officers, agents and employees (collectively, the "Indemnitees") harmless from
<br />and against any and all claims, liabilities, losses, damages, fines, penalties and expenses,
<br />including out~of-pocket, incidental expenses, legal fees and expenses, and the allocated
<br />costs and expenses of in-house counsel and legal staff ("Losses") that may be imposed
<br />on, incurred by or asserted against the Indemnitees or any of them for following any
<br />instruction, request for payment or other direction upon which the Trustee is authorized
<br />to rely, pursuant to the terms of the Indenture, the Guaranty, the Company Agreements or
<br />any other of the financing documents. In addition to and not in limitation of the
<br />immediately preceding sentence, the Company also agrees to indemnify and hold the
<br />Indemnitees and each of them harmless from and against any and all Losses that may be
<br />imposed on, incurred by or asserted against the Indemnitees or any of them in connection
<br />with or arising out of the Trustee's performance under the Indenture, the Guaranty, the
<br />Company Agreements or any other financing document.
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<br />(c) If any claim is asserted under (a) above or (d) below, the party seeking
<br />indemnity will give prompt notice to the Company, and the Company shall have the sole
<br />right and duty to assume, and will assume, the defense thereof, with full power to litigate,
<br />compromise or settle the same in its sole discretion. THE PROVISIONS OF
<br />SECTIONS 8.03(a) AND (b) SHALL REMAIN AND BE IN FULL FORCE AND
<br />EFFECT EVEN IF ANY SUCH LIABILITY, COST, EXPENSE, DAMAGE OR LOSS
<br />OR CLAIM THEREFOR BY ANY PERSON DIRECTLY OR INDIRECTLY
<br />RESULTS FROM, ARISES OUT OF OR RELATES TO, OR IS ASSERTED TO
<br />HA VE RESULTED FROM, ARISE OUT OF OR BE RELATED TO, IN WHOLE OR
<br />IN PART, ONE OR MORE NEGLIGENT ACTS OR OMISSIONS (OTHER THAN, IN
<br />THE CASE OF AN INDEMNIFIED PARTY UNDER (a) ABOVE, AS A RESULT OF
<br />WILLFUL MISCONDUCT OR BAD FAITH OF THE PARTY SEEKING
<br />INDEMNITY OR, IN THE CASE OF THE TRUSTEE, AS A RESULT OF GROSS
<br />NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH ON THE PART OF THE
<br />TRUSTEE) OF THE PARTY SEEKING INDEMNITY, IN CONNECTION WITH THE
<br />MATTERS SET FORTH THEREIN. Notwithstanding the foregoing, in any action
<br />naming the Trustee as defendant, the Trustee shall have the right to retain separate legal
<br />counsel at the expense of the Company, provided that in the event that the Company is
<br />not in Default under this Agreement, the Company shall have the right of approval of any
<br />such legal counsel retained by the Trustee for the Trustee's defense, which approval shall
<br />not be unreasonably withheld and shall be given promptly upon request by the Trustee.
<br />The Trustee and the Company shall reasonably cooperate with each other in the defense
<br />of any such action.
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<br />(d) (1) The Company agrees and shall protect, defend (subject to selection of
<br />counsel by the Indemnified Parties or Indemnitees, as the case may be, as provided by
<br />Section 8.03(c) hereof), indemnify, pay and hold harmless the Indemnified Parties and
<br />Indemnitees from and against any and all Indemnified Liabilities; provided, no
<br />Indemnified Party or Indemnitee shall be entitled to indemnification hereunder with
<br />respect to any Indemnified Liability to the extent such Indemnified Liability is found by a
<br />final and nonappealable decision of a court of competent jurisdiction to have resulted
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<br />4834-8191-0786.7
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