Common use of Indemnity; Damage Waiver Clause in Contracts

Indemnity; Damage Waiver. SECTION 9.03 The Borrower shall pay (i) all reasonable documented out-of-pocket expenses(a) incurred by the Agent and its Affiliates, including the reasonable fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP, counsel for the Agent in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks) of the credit facilities provided for herein and the preparation of the Loan Documents and related documentation, (ii) all reasonable documented out-of-pocket expenses incurred by the Agent and its Affiliates, including the reasonable fees, charges and disbursements of outside legal counsel to the Agent, in connection with any amendments, modifications or waivers of the provisions of any Loan Documents (whether or not the transactions contemplated thereby shall be consummated), (iii) all reasonable documented out-of-pocket expenses incurred by the Agent or the Lenders, including the reasonable documented fees, charges and disbursements of one firm of counsel to the Agent and the Lenders taken as a whole and one firm of local counsel for the Agent and Lenders in each applicable jurisdiction (and such additional counsel as the Agent or any Lender or group of Lenders determines are necessary in light of actual or potential conflicts of interest or the availability of different claims of defenses), in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Term Loans and other extensions of credit made hereunder, including all such reasonable documented out-of-pocket expenses incurred during any workout, restructuring or related negotiations in respect of such Term Loans, and (iv) subject to any other provisions of this Agreement, of the Loan Documents or of any separate agreement entered into by the Borrower and the Agent with respect thereto, all reasonable documented out-of-pocket expenses incurred by the Agent in the administration of the Loan Documents. Expenses reimbursable by the Borrower under this Section 9.03 include, without limiting the generality of the foregoing, subject to any other applicable provision of any Loan Document, reasonable documented out-of-pocket costs and expenses incurred in connection with: lien and title searches and title insurance; and(A) taxes, fees and other charges for recording the Mortgages, filing financing(B) statements and continuations, and other actions to perfect, protect, and continue the Agent’s Liens. The Borrower shall indemnify the Agent, the Joint Lead Arrangers, the(b) Co-Managers and each Lender, in their capacities as such, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution, enforcement or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions -120-

Indemnity; Damage Waiver. (a) The Loan Parties,SECTION 9.03 The Borrower 9.03. jointly and severally, shall pay all (i) all reasonable documented out-of-out of pocket expenses(a) expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP, counsel for the Agent Administrative Agent, in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinksan Electronic System or Approved Electronic Platform) of the credit facilities provided for herein and herein, the preparation and administration of the Loan Documents and related documentation, (ii) all reasonable documented out-of-pocket expenses incurred by the Agent and its Affiliates, including the reasonable fees, charges and disbursements of outside legal counsel to the Agent, in connection with any amendments, modifications or waivers of the provisions of any the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated), (iiiii) all reasonable documented out-of-pocket expenses incurred by the Agent Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the LendersAdministrative Agent, the Issuing Bank or any Lender, including the reasonable documented fees, charges and disbursements of one firm of counsel to the Agent and the Lenders taken as a whole and one firm of local any counsel for the Agent and Lenders in each applicable jurisdiction (and such additional counsel as Administrative Agent, the Agent Issuing Bank or any Lender or group of Lenders determines are necessary in light of actual or potential conflicts of interest or the availability of different claims of defenses)Lender, in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Term Loans and other extensions made or Letters of credit made Credit issued hereunder, including all such reasonable documented out-of-pocket expenses incurred during any workout, restructuring or related negotiations in respect of such Term Loans, and (iv) subject to any other provisions Loans or Letters of this Agreement, of Credit. Expenses being reimbursed by the Loan Documents or of any separate agreement entered into by the Borrower and the Agent with respect thereto, all reasonable documented out-of-pocket expenses incurred by the Agent in the administration of the Loan Documents. Expenses reimbursable by the Borrower Parties under this Section 9.03 include, without limiting the generality of the foregoing, subject to any other applicable provision of any Loan Documentfees, reasonable documented out-of-pocket costs and expenses incurred in connection with: (A) appraisals and insurance reviews; (B) field examinations and the preparation of Reports based on the fees charged by a third party retained by the Administrative Agent or the internally allocated fees for each Person employed by the Administrative Agent with respect to each field examination; provided that, so long as no Event of Default has occurred and is continuing, (x) the Borrower shall only be required to reimburse such costs and expenses for one of such field examinations in any calendar year and (y) the aggregate amount of such costs and expenses so reimbursed shall not exceed $50,000 in any calendar year; (C) background checks regarding senior management and/or key investors, as deemed necessary or appropriate in the sole discretion of the Administrative Agent; (D) fees and other charges for (x) lien and title searches and title insurance; and(Ainsurance and (y) taxes, fees and other charges for recording the Mortgages, filing financing(B) financing statements and continuations, and other actions to perfect, protect, and continue the Administrative Agent’s Liens; (E) sums paid or incurred to take any action required of any Loan Party under the Loan Documents that such Loan Party fails to 117 pay or take; and (F) forwarding loan proceeds, collecting checks and other items of payment, and establishing and maintaining the accounts and lock boxes, and costs and expenses of preserving and protecting the Collateral. All of the foregoing fees, costs and expenses may be charged to the Borrower as Revolving Loans or to another deposit account, all as described in Section 2.18(c). The Borrower Loan Parties, jointly and severally, shall indemnify the Administrative(b) Agent, the Joint Lead Arrangers, the(b) Co-Managers Issuing Bank and each Lender, in their capacities as such, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, incremental taxes, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution, enforcement execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions -120-or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the 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 do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental Liability related in any way to a Loan Party or a Subsidiary, (iv) the failure of a Loan Party to deliver to the Administrative Agent the required receipts or other required documentary evidence with respect to a payment made by such Loan Party for Taxes pursuant to Section 2.17, or (v) any actual or prospective claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by any Loan Party or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. Each Lender severally agrees to pay any amount required to be paid by any(c) Loan Party under paragraph (a) or (b) of this Section 9.03 to the Administrative Agent and each Issuing Bank, and each Related Party of any of the foregoing Persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by the Loan Parties and without limiting the obligation of any Loan Party to do so), ratably according to their respective Applicable Percentage in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Applicable Percentage immediately prior to such date), from and against any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the 118

Indemnity; Damage Waiver. SECTION 9.03 (xviii) The Borrower Company shall pay (i) all reasonable and documented out-of-pocket expenses(a) expenses incurred by the Administrative Agent and its AffiliatesAffiliates (which, including in the case of counsel, shall be limited to the reasonable fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP, one primary counsel for the Administrative Agent and one local counsel in each applicable jurisdiction), in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks) of the credit facilities provided for herein herein, the preparation and administration of this Agreement and the preparation other Loan Documents or any amendments, modifications or waivers of the Loan Documents and related documentationprovisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the Agent and its Affiliates, including the reasonable fees, charges and disbursements of outside legal counsel to the Agent, Issuing Banks in connection with any amendmentsthe issuance, modifications amendment, renewal or waivers of the provisions extension of any Loan Documents (whether Letter of Credit or not the transactions contemplated thereby shall be consummated), any demand for payment thereunder and (iii) all reasonable documented out-of-pocket expenses incurred by the Agent Administrative Agent, any Issuing Bank or any Lender (which in the Lenderscase of counsel, including shall be limited to the reasonable documented fees, charges and disbursements of one firm of primary counsel to the Agent and the Lenders taken as a whole and one firm of local counsel for the Agent and Lenders in each applicable jurisdiction (for the Administrative Agent and such one additional counsel as for all Lenders other than the Administrative Agent or any Lender or group of Lenders determines are necessary and additional counsel in light of actual or potential conflicts of interest or the availability of different claims of defensesinterest), in connection with the enforcementenforcement of its rights, collection or the Administrative Agent’s protection of its rights rights, in connection with the this Agreement and any other Loan DocumentsDocument, including its rights under this Section, or in connection with the Term Loans and other extensions made or Letters of credit made Credit issued hereunder, including all such reasonable documented out-of-pocket expenses incurred during any workout, restructuring or related negotiations in respect of such Term Loans, and (iv) subject to any other provisions of this Agreement, of the Loan Documents or of any separate agreement entered into by the Borrower and the Agent with respect thereto, all reasonable documented out-of-pocket expenses incurred by the Administrative Agent during any workout, restructuring or negotiations in the administration respect of the Loan Documents. Expenses reimbursable by the Borrower under this Section 9.03 include, without limiting the generality such Loans or Letters of the foregoing, subject to any other applicable provision of any Loan Document, reasonable documented out-of-pocket costs and expenses incurred in connection with: lien and title searches and title insurance; and(A) taxes, fees and other charges for recording the Mortgages, filing financing(B) statements and continuations, and other actions to perfect, protect, and continue the Agent’s Liens. The Borrower shall indemnify the Agent, the Joint Lead Arrangers, the(b) Co-Managers and each Lender, in their capacities as such, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution, enforcement or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions -120-Credit.

Indemnity; Damage Waiver. SECTION 9.03 (a) The Borrower shall pay Credit Parties jointly and severally agree to pay, or reimburse the Administrative Agent or Purchasers for paying, (i) all reasonable documented out-of-pocket expenses(a) incurred by the Agent and its Affiliates, including the reasonable fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP, counsel for the Agent in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks) of the credit facilities provided for herein and the preparation of the Loan Documents and related documentation, (ii) all reasonable documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the Purchasers and their Affiliates for the reasonable fees, charges and disbursements of outside legal counsel Special Counsel, but not to exceed $30,000 in the Agentaggregate, in connection with the syndication of the credit facilities provided for herein, the preparation of this Agreement and the other Note Documents, (ii) all reasonable out-of-pocket expenses incurred by the Administrative Agent and the Purchasers and their Affiliates for the reasonable fees, charges and disbursements of Special Counsel, in connection with any amendments, modifications or waivers of the provisions of any Loan Documents hereof or thereof (whether or not the transactions contemplated thereby shall be consummated), (iii) all reasonable documented out-of-pocket expenses incurred by the Agent or the Lenders, including the reasonable documented fees, charges and disbursements of one firm of counsel to the Agent and the Lenders taken as a whole and one firm of local counsel for the Agent and Lenders in each applicable jurisdiction (and such additional counsel as the Agent or any Lender or group of Lenders determines are necessary in light of actual or potential conflicts of interest or the availability of different claims of defenses), in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Term Loans and other extensions of credit made hereunder, including all such reasonable documented out-of-pocket expenses incurred during any workout, restructuring or related negotiations in respect of such Term Loans, and (iv) subject to any other provisions of this Agreement, of the Loan Documents or of any separate agreement entered into by the Borrower and the Agent with respect thereto, all reasonable documented out-of-pocket expenses incurred by the Agent in the administration of the Loan Documents. Expenses reimbursable by the Borrower under this Section 9.03 include, without limiting the generality of the foregoing, subject to any other applicable provision of any Loan Document, reasonable documented out-of-pocket costs and expenses incurred in connection with: lien and title searches and title insurance; and(A) taxes, fees and other charges for recording the Mortgages, filing financing(B) statements and continuations, and other actions to perfect, protect, and continue the Administrative Agent’s Liens. The Borrower shall indemnify the Agent, the Joint Lead Arrangers, the(b) Co-Managers and each Lender, in their capacities as such, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out ofthe Administrative Agent, in connection with, or as a result of (i) with the execution, enforcement or delivery protection of its rights in connection with this Agreement and the other Note Documents, including its rights under this Section 10.3, and (iv) all transfer, stamp, documentary or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement or any of the Loan other Note Documents or any agreement other document referred to herein or instrument therein and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated thereby, the performance by the parties hereto of their respective obligations thereunder any Collateral Document or the consummation of the Transactions -120-any other document referred to therein.