may, with the consent of the Required Lenders, enforce
any rights and remedies available to it as authorized by the Required Lenders.
12.04
Expenses; Indemnity; Damage Waiver.
(a)
Costs and
Expenses.
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, negotiation, execution, delivery and administration of
this Agreement and the other Loan Documents or any
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amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (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 (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
(B)
INDEMNIFICATION BY THE BORROWER. THE
BORROWER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF),
THE JOINT LEAD ARRANGERS, THE LENDERS 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 REASONABLE OUT OF POCKET DOCUMENTED EXPENSES (INCLUDING,
WITHOUT LIMITATION, THE REASONABLE OUT OF POCKET AND INVOICED FEES,
DISBURSEMENTS AND OTHER CHARGES OF (I) ONE COUNSEL, (II) IN THE CASE OF A
MATERIAL CONFLICT BETWEEN TWO OR MORE INDEMNITEES, AS SO DETERMINED IN THE
REASONABLE OPINION OF EXISTING COUNSEL, ONE ADDITIONAL COUNSEL, AND (III) ONE
LOCAL COUNSEL IN EACH APPLICABLE JURISDICTION) (COLLECTIVELY, THE "LOSSES"),
INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY THIRD PARTY
OR BY THE BORROWER (BUT EXCLUDING ANY PROCEEDING BROUGHT BY A THIRD PARTY OR A
LENDER AGAINST ANY OTHER LENDER (IN SUCH LENDER'S CAPACITY AS A LENDER AND NOT
IN ANY CAPACITY AS A JOINT LEAD ARRANGER OR THE ADMINISTRATIVE AGENT)), ARISING
OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF
THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR, IN THE CASE OF THE
ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF) AND ITS RELATED PARTIES ONLY,
THE ADMINISTRATION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, (II) ANY LOAN
OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM, OR (III) ANY ACTUAL OR
PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF
THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER
BROUGHT BY A THIRD PARTY OR BY THE BORROWER OR ANY OTHER