solvency of the Borrower and its subsidiaries on a consolidated basis after giving effect to the Tender Offer and related transactions (including all related Borrowings under the Facility); the creation, validity and perfection of security interests in the Collateral securing the Facility (subject to the limitations set forth in clause (ii) above); and status under the Facility as senior debt.
This Section 4 and the provisions contained herein shall be referred to as the Certain Funds Provision.
5. Indemnification; Expenses
You agree to (i) indemnify and hold harmless the Lender, each of its affiliates and each of the Lenders and each such affiliates respective partners, members, directors, agents, employees, officers, advisors, trustees, other representatives or controlling persons (collectively, Indemnified Persons) from and against, any and all losses, claims, damages, liabilities and other reasonable costs and expenses of any kind (including reasonable legal fees, charges, disbursements, costs and expenses) to which such Indemnified Person may become subject or that may be incurred or asserted or awarded against such Indemnified Person, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation, claim or proceeding) the Transactions (including in respect of the Facility, the Refinancing or the Tender Offer), the Definitive Documentation and the use of proceeds of the Facility (whether or not such investigation, litigation, claim or proceeding is brought by you, the Target or any of your or the Targets equity holders, subsidiaries, affiliates or creditors, and whether or not any Indemnified Person is otherwise a party thereto and whether or not any of the Transactions are consummated) and (ii) reimburse each Indemnified Person for all reasonable and documented out-of-pocket expenses (including all reasonable fees, time charges, disbursement, costs and expenses of legal counsel), in each case, within three (3) business days following written demand of such Indemnified Person; provided that you will not have to indemnify any Indemnified Person to the extent that any such loss, claim, damage, liability or related cost or expense arise from (x) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any person acting on its behalf, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction, (y) such Indemnified Persons or any persons acting on its behalf material breach of this Commitment Letter and/or the Definitive Documentation, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction, or (z) any dispute arising out of or in connection with any claim, litigation, loss, investigation or proceeding that is brought by an Indemnified Person against another Indemnified Person not arising from any action or omission by you, the Target or any of your or their respective subsidiaries or affiliates. You shall not be liable for any settlement of any investigation, litigation, claim or proceeding effected by any Indemnified Person without your consent (which consent shall not be unreasonably withheld, conditioned or delayed) or any other loss, claim, damage, liability, cost and/or expense incurred in connection with such settlement, but if any such investigation, litigation, claim or proceeding is settled with your written consent, or if there is a final non-appealable judgment of a court of competent jurisdiction