IN A MANNER THAT WOULD ALTER THE PRO RATA
SHARING OF PAYMENTS REQUIRED THEREBY, WITHOUT THE WRITTEN CONSENT OF EACH
LENDER, (V) CHANGE ANY OF THE PROVISIONS OF THIS SECTION OR THE DEFINITION OF
"REQUIRED LENDERS" OR ANY OTHER PROVISION HEREOF SPECIFYING THE NUMBER OR
PERCENTAGE OF LENDERS REQUIRED TO WAIVE, AMEND OR MODIFY ANY RIGHTS HEREUNDER OR
MAKE ANY DETERMINATION OR GRANT ANY CONSENT HEREUNDER, WITHOUT THE WRITTEN
CONSENT OF EACH LENDER, OR (VI) EXCEPT AS PROVIDED IN THIS AGREEMENT, RELEASE
ALL OR SUBSTANTIALLY ALL OF THE COLLATERAL (AS DEFINED IN THE SECURITY
AGREEMENT) 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, THE ISSUING BANK OR THE SWINGLINE LENDER HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK
OR THE SWINGLINE LENDER, AS THE CASE MAY BE.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
REQUIRED LENDERS SHALL NOT BE REQUIRED TO CONSENT TO, OR ENTER INTO, ANY WRITTEN
INSTRUMENT DOCUMENTING BORROWER'S AND/OR ANY SUBSIDIARIES' PLEDGE OF ADDITIONAL
PROPERTY PURSUANT TO SECTION 5.09, INCLUDING, WITHOUT LIMITATION, ANY
AMENDMENTS, ASSUMPTIONS AND/OR SUPPLEMENTS TO THE LOAN DOCUMENTS; PROVIDED THAT
THE ADMINISTRATIVE AGENT (ON BEHALF OF THE REQUIRED LENDERS) IS A PARTY THERETO.
(D)
IF, IN CONNECTION WITH ANY PROPOSED AMENDMENT OR WAIVER OF ANY
PROVISION OF THIS AGREEMENT AS CONTEMPLATED BY CLAUSES (I) THROUGH (IV),
INCLUSIVE, OF THE FIRST PROVISO TO SECTION 9.02(B), THE CONSENT OF THE REQUIRED
LENDERS IS OBTAINED BUT THE CONSENTS OF ONE OR MORE OTHER LENDERS
("NON-CONSENTING LENDERS") WHOSE CONSENTS ARE REQUIRED FOR SUCH AMENDMENT OR
WAIVER TO BECOME EFFECTIVE ARE NOT OBTAINED, THEN THE BORROWER SHALL HAVE THE
RIGHT TO REPLACE SUCH NON-CONSENTING LENDERS WITH ONE OR MORE ASSIGNEES PURSUANT
TO, AND WITH THE EFFECT OF AN ASSIGNMENT UNDER, SECTION 9.04 SO LONG AS AT THE
TIME OF SUCH REPLACEMENT, EACH SUCH ASSIGNEE CONSENTS TO THE PROPOSED AMENDMENT
OR WAIVER. THE BORROWER SHALL NOT HAVE THE RIGHT TO REPLACE ANY LENDER SOLELY AS
A RESULT OF THE EXERCISE OF ITS RIGHTS OR THE WITHHOLDING BY IT OF ANY CONSENT
UNDER THE SECOND PROVISO TO SECTION 9.02(B).
SECTION 9.03. 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
58
PROVIDED FOR HEREIN, THE PREPARATION AND ADMINISTRATION OF THIS AGREEMENT OR ANY
AMENDMENTS, MODIFICATIONS OR WAIVERS OF THE PROVISIONS HEREOF (WHETHER OR NOT
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE CONSUMMATED), (II) ALL
REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY THE 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 ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER, INCLUDING THE FEES,
CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR