Common use of Costs and Expense Clause in Contracts

Costs and Expense. (a) Each party will bear its own costs and expenses in connection with the negotiation, execution and delivery and administration of this Agreement and the other Financing Agreements and any related bankruptcy proceedings. (b) The Borrower agrees to pay on demand all costs and expenses of the Exit Loan Agent and the Lenders in connection with the enforcement of the Financing Agreements, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights generally (including, without limitation, the fees and expenses of counsel for the Exit Loan Agent and one set of counsel for the Lenders with respect thereto). (c) The Borrower agrees to indemnify, defend and save and hold harmless each Exit Loan Agent, each Lender and each of their Affiliates and their respective Related Parties (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) this Agreement, the actual or proposed use of the proceeds of the Advances, the other Financing Agreements or any of the transactions contemplated thereby or (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in any way to the Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss, Case 15-40289-rfn11 Doc 2856-6 Filed 08/02/16 Entered 08/02/16 00:28:09 Page 54 of 63 liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 13.04(a) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, trustee, shareholders or creditors, any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated by this Agreement are consummated. The Borrower also agrees not to assert any claim against the Exit Loan Agent, any Lender or any of their Affiliates, or any of their respective officers, directors, employees, agents and advisors, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to this Agreement, the actual or proposed use of the proceeds of the Advances, the other Financing Agreements (other than the Plan Collaboration Agreement) or any of the transactions contemplated by the Financing Agreements (other than the Plan Collaboration Agreement). (d) [RESERVED]. (e) If the Borrower fails to pay when due any costs, expenses or other amounts payable by it under any Financing Agreement, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of the Borrower by the Exit Loan Agent or any Lender, in its sole discretion. (f) Without prejudice to the survival of any other agreement of the Borrower hereunder or under any other Financing Agreement, the agreements and obligations of the Borrower contained in Sections 2.11 and 2.13 and this Section 13.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Financing Agreement.

Costs and Expense. (a) Each party will bear its own costs and expenses in connection with the negotiation, execution and delivery and administration of this Agreement and the other Financing Agreements and any related bankruptcy proceedings. (b) The Borrower agrees to pay on demand all costs and expenses of the Exit Loan Administrative Agent and the Lenders in connection with the enforcement of the Financing Agreements, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights generally (including, without limitation, the fees and expenses of counsel for the Exit Loan Administrative Agent and one set of counsel for the Lenders with respect thereto). (c) The Borrower agrees to indemnify, defend and save and hold harmless each Exit Loan Agent, each Lender and each of their Affiliates and their respective Related Parties (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) this Agreement, the actual or proposed use of the proceeds of the Advances, the other Financing Agreements or any of the transactions contemplated thereby or (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in any way to the Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss, Case 15-40289-rfn11 Doc 2856-6 Filed 08/02/16 Entered 08/02/16 00:28:09 Page 54 of 63 liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 13.04(a) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, trustee, shareholders or creditors, any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated by this Agreement are consummated. The Borrower also agrees not to assert any claim against the Exit Loan Agent, any Lender or any of their Affiliates, or any of their respective officers, directors, employees, agents and advisors, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to this Agreement, the actual or proposed use of the proceeds of the Advances, the other Financing Agreements (other than the Plan Collaboration Agreement) or any of the transactions contemplated by the Financing Agreements (other than the Plan Collaboration Agreement). (d) [RESERVED]. (e) If the Borrower fails to pay when due any costs, expenses or other amounts payable by it under any Financing Agreement, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of the Borrower by the Exit Loan Administrative Agent or any Lender, in its sole discretion. (f) Without prejudice to the survival of any other agreement of the Borrower hereunder or under any other Financing Agreement, the agreements and obligations of the Borrower contained in Sections 2.11 and 2.13 and this Section 13.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Financing Agreement.