Holdings and the Borrower shall permit the Administrative Agent to, at the expense of the Borrower and Holding, conduct a due diligence review satisfactory to the Administrative Agent with respect to Holdings and the Borrower and their respective Subsidiaries. Such due diligence review shall be conducted by such independent accounting firm(s), law firm(s), and/or such other third party consultants and other professionals as shall be acceptable to the Agent and may occur in multiple stages, at the Administrative Agent’s discretion. Holdings and the Borrower agree to cooperate and to ensure that their respective Subsidiaries cooperate with the Administrative Agent and such accounting firm(s), law firm(s), and other consultants and professionals in connection with such endeavor. Holdings and the Borrower shall promptly pay all costs and expenses of the Administrative Agent and all of the fees, charges, costs and expenses of the accounting firm(s), law firm(s), and other third party consultants and other professionals involved in such due diligence review. Without limiting the foregoing, Holdings and the Borrower shall deposit the sum of $300,000 with the Administrative Agent for utilization by the Administrative Agent as a security deposit to pay any of the fees, charges, costs and/or expenses that are not paid by Holdings or the Borrower pursuant to the requirements hereof. Holdings and the Borrower understand, acknowledge and agree that such $300,000 deposit is intended as a security deposit to be maintained by the Administrative Agent and that the applicable periodic invoices for the relevant fees, charges, costs and expenses shall be paid by Holdings and the Borrower directly to the applicable accounting firm(s), law firm(s), and other third party consultants and other professionals and that such fees, charges, costs and expenses shall be paid by the Administrative Agent from such deposit only in the event of default by Holdings and the Borrower in the payment of same or otherwise in the Administrative Agent’s absolute discretion. The foregoing $300,000 deposit shall be paid by Holdings and the Borrower to the Administrative Agent in two installments, the first of which shall be in the amount of $200,000 and shall be paid concurrently with the effectiveness of this Amendment, and the second of which shall be in the amount of $100,000 and shall be paid within thirty (30) days after the effectiveness of this Amendment;
Holdings and the Borrower hereby acknowledge and agree that each Lender may share with any of its affiliates any information related to Holdings or any of its Subsidiaries (including, without limitation, any nonpublic customer information regarding the creditworthiness of Holdings and its Subsidiaries), provided that such Persons shall be subject to the provisions of this Section 13.15 to the same extent as such Lender.
Holdings and the Borrower jointly and severally, shall indemnify each Agent, the Issuing Bank and each Lender, 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, 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 or delivery of any Loan Document or any other agreement or instrument contemplated hereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions 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 Mortgaged Property or any other property owned or operated by Holdings, the Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to Holdings, the Borrower or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, 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, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee or any Related Party of such Indemnitee.
Holdings and the Borrower have heretofore furnished to the Lenders the consolidated balance sheets and statements of income, stockholder's equity and cash flows for the Target as of and for the fiscal year years ended December 31, 2004, December 31, 2005 and December 31, 2006, in each case audited by and accompanied by the opinion of PricewaterhouseCoopers, LLP, independent public accountants. Such financial statements present fairly in all material respects the financial condition and results of operations and cash flows of the Target as of such dates and for such periods. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Target as of the dates thereof. Such financial statements were prepared in accordance with GAAP applied on a consistent basis and were prepared in accordance with Regulations S-X under the Securities Act of 1933, as amended.
