MODIFY ANY RIGHTS HEREUNDER OR MAKE ANY DETERMINATION OR GRANT ANY CONSENT
HEREUNDER, WITHOUT THE WRITTEN CONSENT OF EACH LENDER; PROVIDED FURTHER THAT NO
SUCH AGREEMENT SHALL AMEND, MODIFY OR OTHERWISE AFFECT THE RIGHTS OR DUTIES OF
THE ADMINISTRATIVE AGENT HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
ADMINISTRATIVE AGENT.
SECTION 11.03.
EXPENSES; INDEMNITY; DAMAGE WAIVER.
(A)
THE BORROWER SHALL PAY (I) ALL REASONABLE
OUT-OF-POCKET EXPENSES INCURRED BY THE ADMINISTRATIVE AGENT AND ITS AFFILIATES,
INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF COUNSEL FOR THE
ADMINISTRATIVE AGENT, IN CONNECTION WITH THE SYNDICATION OF THE CREDIT
FACILITIES PROVIDED FOR HEREIN, THE PREPARATION AND ADMINISTRATION OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS OR ANY AMENDMENTS, MODIFICATIONS OR
WAIVERS OF THE PROVISIONS HEREOF (WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY SHALL BE CONSUMMATED) AND (II) ALL OUT-OF-POCKET EXPENSES
INCURRED BY THE ADMINISTRATIVE AGENT OR ANY LENDER, INCLUDING THE FEES, CHARGES
AND DISBURSEMENTS OF ANY COUNSEL FOR THE ADMINISTRATIVE AGENT OR ANY LENDER, IN
CONNECTION WITH THE ENFORCEMENT OR PROTECTION OF ITS RIGHTS IN CONNECTION WITH
THE LOAN DOCUMENTS, INCLUDING ITS RIGHTS UNDER THIS SECTION, OR IN CONNECTION
WITH THE LOANS MADE HEREUNDER, INCLUDING ALL SUCH OUT-OF-POCKET EXPENSES
INCURRED DURING ANY WORKOUT, RESTRUCTURING OR NEGOTIATIONS IN RESPECT OF SUCH
LOANS.
58
(B)
THE CREDIT PARTIES SHALL INDEMNIFY THE ADMINISTRATIVE AGENT 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, 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 OR DELIVERY OF THIS
AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE PERFORMANCE BY
THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THE CONSUMMATION
OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY, (II) ANY LOAN
OR THE USE OF THE PROCEEDS THEREFROM, (III) ANY ACTUAL OR ALLEGED PRESENCE OR
RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE
BORROWER OR ANY SUBSIDIARY, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO
THE BORROWER OR ANY SUBSIDIARY, 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 WILLFUL MISCONDUCT OF SUCH INDEMNITEE.
(C)
TO THE EXTENT THAT ANY CREDIT PARTY FAILS TO PAY ANY AMOUNT
REQUIRED TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT UNDER PARAGRAPH (A) OR
(B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE