review (including, without
duplication, the allocated cost of such internal services), search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses, incurred or sustained by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Bank, in each case
in connection with the matters referred to Section 12.04(a) and (b). All amounts
under this Section 12.04 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination of the
Commitments and repayment of all other Obligations.
12.05 INDEMNITY. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE
CONSUMMATED, THE BORROWER SHALL INDEMNIFY AND HOLD HARMLESS EACH AGENT-RELATED
PERSON, EACH BANK AND THEIR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL,
AGENTS AND ATTORNEYS-IN-FACT (EACH, AN "INDEMNIFIED PERSON") FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS,
DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING
ATTORNEY COSTS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE
IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNIFIED PERSON IN ANY
WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (A) THE EXECUTION,
SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 112
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 THE ISSUING
BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS
PRESENTED IN CONNECTION WITH SUCH DEMAND FOR PAYMENT 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 THE BORROWER, ANY SUBSIDIARY OR ANY OTHER CREDIT PARTY, OR
ANY ENVIRONMENTAL CLAIM RELATED IN ANY WAY TO THE BORROWER, ANY SUBSIDIARY OR
ANY OTHER CREDIT PARTY OR (D) 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 INDEMNIFIED PERSON IS A PARTY THERETO
(ALL OF THE FOREGOING, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES") IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
NEGLIGENCE OF SUCH INDEMNIFIED PERSON; PROVIDED THAT SUCH INDEMNITY SHALL NOT,
AS TO ANY INDEMNIFIED PERSON, 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 SUCH INDEMNIFIED PERSON. NO INDEMNIFIED