Common use of Indemnification; Nature of Lenders’ Duties Clause in Contracts

Indemnification; Nature of Lenders’ Duties. In addition to amounts payable as elsewhere provided in this Agreement, Xxxxxxxx hereby agrees to pay and to protect, indemnify, and save harmless Administrative Agent, each Revolving Lender and each L/C Issuer from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (limited, in the case of legal fees, costs and expenses, to the reasonable and documented out-of-pocket attorneys’ fees, costs and expenses of one counsel to the Administrative Agent, the Revolving Lenders and the L/C Issuers, taken as a whole (and, in the case of an actual conflict of interest, one additional counsel to all such Persons, taken as a whole, and to the extent reasonably necessary, one local counsel in each relevant jurisdiction to all such Persons taken as a whole)) and, for the avoidance of doubt, any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (limited, in the case of legal fees, costs and expenses, to the reasonable and documented out-of-pocket attorneys’ fees, costs and expenses, limited to one counsel to the Administrative Agent, the Revolving Lenders and the L/C Issuers, taken as a whole (and, in the case of an actual conflict of interest, one additional counsel to all such Persons, taken as a whole, and to the extent reasonably necessary one local counsel in each relevant jurisdiction to all such Persons, taken as a whole)) arising in connection with any claim, investigation, litigation or proceeding brought against Administrative Agent, a Revolving Lender or an L/C Issuer by a Loan Party or any of its Restricted Subsidiaries or any other Person which Administrative Agent, any Revolving Lender or any L/C Issuer may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit or guaranty or other support thereof, or (ii) the failure of Administrative Agent, any Revolving Lender or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty or other support thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent resulting from the gross negligence or willful misconduct of Administrative Agent, a Revolving Lender or a L/C Issuer (as finally determined by a court of competent jurisdiction), as applicable. The obligations of Borrower under this Section 2.2(g) shall be deemed to constitute Guaranteed Indebtedness. As between Administrative Agent, any Revolving Lender, any L/C Issuer and the Borrower, Borrower shall assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by Law none of Administrative Agent, any Revolving Lender or L/C Issuer shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided that in the case of any payment by Administrative Agent or the L/C Issuer under any Letter of Credit or guaranty or other support thereof, Administrative Agent or such L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty or other support thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty or other support thereof; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty or other support thereof or of the proceeds thereof; (vii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty or other support thereof; and (viii) for any consequences arising from causes beyond the control of Administrative Agent, any Revolving Lender or any L/C Issuer. None of the above shall affect, impair, or prevent the vesting of any of Administrative Agent’s, any Revolving Lender’s or any L/C Issuer’s rights or powers under this Agreement. Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrower in favor of any L/C Issuer in any L/C Application, reimbursement agreement or similar document, instrument or agreement between or among the Borrower and such L/C Issuer.

Indemnification; Nature of Lenders’ Duties. (i) In addition to ------------------------------------------ amounts payable as elsewhere provided in this the Agreement, Xxxxxxxx Borrower hereby agrees to pay and to protect, indemnify, and save harmless Administrative Agent, each Revolving Lender Agent and each L/C Issuer Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (limited, in the case including attorneys' fees and allocated costs of legal fees, costs and expenses, to the reasonable and documented out-of-pocket attorneys’ fees, costs and expenses of one counsel to the Administrative Agent, the Revolving Lenders and the L/C Issuers, taken as a whole (and, in the case of an actual conflict of interest, one additional counsel to all such Persons, taken as a whole, and to the extent reasonably necessary, one local counsel in each relevant jurisdiction to all such Persons taken as a whole)internal counsel) and, for the avoidance of doubt, any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (limited, in the case of legal fees, costs and expenses, to the reasonable and documented out-of-pocket attorneys’ fees, costs and expenses, limited to one counsel to the Administrative Agent, the Revolving Lenders and the L/C Issuers, taken as a whole (and, in the case of an actual conflict of interest, one additional counsel to all such Persons, taken as a whole, and to the extent reasonably necessary one local counsel in each relevant jurisdiction to all such Persons, taken as a whole)) arising in connection with any claim, investigation, litigation or proceeding brought against Administrative Agent, a Revolving Lender or an L/C Issuer by a Loan Party that Agent or any of its Restricted Subsidiaries or any other Person which Administrative Agent, any Revolving Lender or any L/C Issuer may incur or be subject to as a consequence, direct or indirect, of (iA) the issuance of any Letter of Credit or guaranty or other support thereof, or (iiB) the failure of Administrative Agent, Agent or any Revolving Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty or other support thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent resulting from solely as a result of the gross negligence or willful misconduct of Administrative Agent, a Revolving Agent or such Lender or a L/C Issuer (as finally determined by a court of competent jurisdiction), as applicable. The obligations of Borrower under this Section 2.2(g. (ii) shall be deemed to constitute Guaranteed Indebtedness. As between Administrative Agent, Agent and any Revolving Lender, any L/C Issuer Lender and the Borrower, Borrower shall assume assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by Law none of Administrative Agent, law neither Agent nor any Revolving Lender or L/C Issuer shall be responsibleresponsible for: (iA) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (iiB) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which that may prove to be invalid or ineffective for any reason; (iiiC) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided provided, that in the -------- case of any payment by Administrative Agent or the L/C Issuer under any Letter of Credit or guaranty or other support thereof, Administrative Agent or such L/C Issuer shall be liable to the extent such payment was made solely primarily as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty or other support thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty or other support thereof; (ivD) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (vE) for errors in interpretation of technical terms; (viF) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty or other support thereof or of the proceeds thereof; (viiG) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty or other support thereof; and (viiiH) for any consequences arising from causes beyond the control of Administrative Agent, any Revolving Lender Agent or any L/C IssuerLender. None of the above shall affect, impair, or prevent the vesting of any of Administrative Agent’s, any Revolving Lender’s 's or any L/C Issuer’s Lender's rights or powers hereunder or under this the Agreement. . (iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrower in favor of any L/C Issuer in any L/C Applicationletter of credit application, reimbursement agreement or similar document, instrument or agreement between or among the Borrower and such L/C Issuer. ANNEX C (Section 1.8) ----------- to CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEM ---------------------- Borrower shall, and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below: (a) On or before the Closing Date and until the Termination Date, Borrower shall (i) establish lock boxes ("Lock Boxes") at one or more of the ---------- banks set forth in Disclosure Schedule (3.19), and shall request in writing and ------------------------- otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more bank accounts in Borrower's name or any such Subsidiary's name (each a "Borrower Account" and collectively, the "Borrower Accounts") at a ---------------- ----------------- bank identified in Disclosure Schedule (3.19) (each, a "Relationship Bank"). On ------------------------- ----------------- or before the date that is ninety (90) days following the Closing Date, Borrower shall have established a concentration account in its name (the "Concentration ------------- Account") at the bank that shall be designated as the Concentration Account bank ------- for Borrower in Disclosure Schedule (3.19) (the "Concentration Account Bank") ------------------------- -------------------------- which bank shall be satisfactory to Agent. (b) Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank -------------------- --------------------- acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrower pursuant to Section 1.1 for use by Borrower solely in accordance with the provisions of ----------- Section 1.4. ----------- (c) On or before the date that is ninety (90) days following the Closing Date (or such later date as Agent shall consent to in writing), the Concentration Account Bank, each bank where a Disbursement Account is maintained and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Agent, which shall become operative on or prior to the date that is ninety (90) days following the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Concentration Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account, for returned checks or other items of payment and for any required adjustments due to clerical errors or calculation errors relating to such account and in accordance with any court order, notice of garnishment binding on such bank or any other applicable law binding on such bank, and (iii) from and after the date that is ninety (90) days following the Closing Date (A) with respect to banks at which a Borrower Account is maintained, such bank agrees to forward immediately all amounts in each Borrower Account to the Concentration Account Bank and to commence the process of daily sweeps from such Borrower Account into the Concentration Account and (B) with respect to the Concentration Account Bank, such bank agrees to immediately forward all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. Borrower shall not, and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in Disbursement Accounts or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements. (d) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Disclosure Schedule (3.19) to add or replace a ------------------------- Relationship Bank, Lock Box or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, that (i) Agent shall have -------- consented in writing in advance to the opening of such account or Lock Box with the relevant bank and (ii) prior to the time of the opening of such account or Lock Box, Borrower or its Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment. (e) The Lock Boxes, Borrower Accounts, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.

Indemnification; Nature of Lenders’ Duties. In addition to amounts payable as elsewhere provided in this Agreement, Xxxxxxxx Borrower hereby agrees to pay and to protect, indemnify, and save harmless Administrative Agent, each Revolving Lender and each L/C Issuer from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (limited, in the case of legal fees, costs and expenses, to the reasonable and documented out-of-pocket attorneys’ fees, costs and expenses of one counsel to the Administrative Agent, the Revolving Lenders and the L/C Issuers, taken as a whole (and, in the case of an actual conflict of interest, one additional counsel to all such Persons, taken as a whole, and to the extent reasonably necessary, one local counsel in each relevant jurisdiction to all such Persons taken as a whole)) and, for the avoidance of doubt, any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (limited, in the case of legal fees, costs and expenses, to the reasonable and documented out-of-pocket attorneys’ fees, costs and expenses, limited to one counsel to the Administrative Agent, the Revolving Lenders and the L/C Issuers, taken as a whole (and, in the case of an actual conflict of interest, one additional counsel to all such Persons, taken as a whole, and to the extent reasonably necessary one local counsel in each relevant jurisdiction to all such Persons, taken as a whole)) arising in connection with any claim, investigation, litigation or proceeding brought against Administrative Agent, a Revolving Lender or an L/C Issuer by a Loan Party or any of its Restricted Subsidiaries or any other Person which Administrative Agent, any Revolving Lender or any L/C Issuer may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit or guaranty or other support thereof, or (ii) the failure of Administrative Agent, any Revolving Lender or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty or other support thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent resulting from the gross negligence or willful misconduct of Administrative Agent, a Revolving Lender or a L/C Issuer (as finally determined by a court of competent jurisdiction), as applicable. The obligations of Borrower under this Section 2.2(g) shall be deemed to constitute Guaranteed Indebtedness. As between Administrative Agent, any Revolving Lender, any L/C Issuer and the Borrower, Borrower shall assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by Law none of Administrative Agent, any Revolving Lender or L/C Issuer shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided that in the case of any payment by Administrative Agent or the L/C Issuer under any Letter of Credit or guaranty or other support thereof, Administrative Agent or such L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty or other support thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty or other support thereof; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty or other support thereof or of the proceeds thereof; (vii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty or other support thereof; and (viii) for any consequences arising from causes beyond the control of Administrative Agent, any Revolving Lender or any L/C Issuer. None of the above shall affect, impair, or prevent the vesting of any of Administrative Agent’s, any Revolving Lender’s or any L/C Issuer’s rights or powers under this Agreement. Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrower in favor of any L/C Issuer in any L/C Application, reimbursement agreement or similar document, instrument or agreement between or among the Borrower and such L/C Issuer.