OTHER OUT-OF-POCKET EXPENSES AND THE COST OF
INDEPENDENT PUBLIC ACCOUNTANTS, CONSULTANTS AND OTHER OUTSIDE EXPERTS RETAINED
BY THE ADMINISTRATIVE AGENT OR ANY LENDER.
ALL AMOUNTS DUE UNDER THIS
SECTION 12.04 SHALL BE DEEMED PART OF THE OBLIGATIONS WHEN INCURRED AND SHALL BE
PAYABLE WITHIN TEN (10) BUSINESS DAYS AFTER DEMAND THEREFOR.
THE AGREEMENTS IN
THIS SECTION 12.04 SHALL SURVIVE THE TERMINATION DATE.
SECTION 12.05
INDEMNIFICATION BY THE BORROWERS.
WHETHER OR NOT
THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE BORROWERS AGREE
JOINTLY AND SEVERALLY TO INDEMNIFY AND HOLD HARMLESS EACH AGENT-RELATED PERSON,
EACH LENDER, THE L/C ISSUER, EACH SECURED PARTY AND THE RESPECTIVE AFFILIATES OF
ALL SUCH PERSONS AND THEIR REPRESENTATIVES, DIRECTORS, OFFICERS, EMPLOYEES,
COUNSEL, TRUSTEES, ADVISORS, AGENTS AND ATTORNEYS-IN-FACT OF ALL THE FOREGOING
PERSONS (COLLECTIVELY, THE "INDEMNITEES") FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES,
122
DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES
AND DISBURSEMENTS (INCLUDING ATTORNEY COSTS AND OTHER COSTS OF INVESTIGATION OR
DEFENSE, INCLUDING THOSE INCURRED UPON ANY APPEAL) OF ANY KIND OR NATURE
WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST
ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION
WITH (A) THE EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE OR ADMINISTRATION OF
ANY LOAN DOCUMENT OR ANY OTHER AGREEMENT, LETTER OR INSTRUMENT DELIVERED IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY, (B) ANY COMMITMENT, LOAN OR LETTER OF CREDIT
OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY
ANY L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE
DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH
THE TERMS OF SUCH LETTER OF CREDIT), (C) ANY ACTUAL OR ALLEGED PRESENCE OR
RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY CURRENTLY OR FORMERLY
OWNED OR OPERATED BY ANY BORROWER, ANY SUBSIDIARY OR ANY OTHER LOAN PARTY, OR
ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY BORROWER, ANY SUBSIDIARY
OR ANY OTHER LOAN PARTY, (D) INSURANCE PREMIUMS OWED BY ANY LOAN PARTY AND
MATTERS ARISING FROM WARRANTIES OR REPRESENTATIONS MADE BY ANY BORROWER TO
INSURANCE UNDERWRITERS, OR (E) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION,
INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY (INCLUDING ANY INVESTIGATION OF, PREPARATION
FOR, OR DEFENSE OF ANY PENDING OR THREATENED CLAIM, INVESTIGATION, LITIGATION OR
PROCEEDING) AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO (ALL THE
FOREGOING, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, THAT
SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS ARE DETERMINED BY A
COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE OR
BREACH BY AN INDEMNITEE OF ANY LOAN DOCUMENT (OR SUCH INDEMNITEE'S OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS)