TO THIS
SECTION 10.01 AND TELEPHONIC CONFIRMATION OF RECEIPT THEREOF IS RECEIVED, OR
(III) IF GIVEN BY ANY OTHER MEANS, WHEN DELIVERED AT THE ADDRESS SPECIFIED IN
THIS SECTION; PROVIDED THAT NOTICES TO THE ADMINISTRATIVE AGENT UNDER ARTICLE 2
OR ARTICLE 8 SHALL NOT BE EFFECTIVE UNTIL RECEIVED.
SECTION 10.02.
NO WAIVERS.
NO FAILURE OR DELAY BY THE AGENTS OR ANY
LENDER IN EXERCISING ANY RIGHT, POWER OR PRIVILEGE UNDER ANY LOAN DOCUMENT SHALL
OPERATE AS A WAIVER THEREOF NOR SHALL ANY SINGLE OR PARTIAL EXERCISE THEREOF
PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER
RIGHT, POWER OR PRIVILEGE.
THE RIGHTS AND REMEDIES PROVIDED IN THE LOAN
DOCUMENT SHALL BE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS OR REMEDIES
PROVIDED BY LAW.
SECTION 10.03.
EXPENSES; INDEMNIFICATION.
(A)
THE LENDERS WILL BEAR
THEIR OWN COSTS AND EXPENSES RELATING TO THE NEGOTIATION, PREPARATION, EXECUTION
AND DELIVERY OF THE LOAN DOCUMENTS; PROVIDED THAT THE AGENTS SHALL BEAR PRO
RATA, IN ACCORDANCE WITH THEIR RESPECTIVE COMMITMENTS UNDER THE COMMITMENT
LETTER DATED MAY 28, 2003, ALL SUCH COSTS AND EXPENSES, AS WELL AS ALL
SYNDICATION COSTS AND EXPENSES, INCURRED BY THE SOLE BOOK-RUNNER.
THE BORROWER
SHALL PAY OR REIMBURSE (I) ALL REASONABLE COSTS AND EXPENSES OF THE
ADMINISTRATIVE AGENT, INCLUDING REASONABLE FEES AND DISBURSEMENTS OF SPECIAL
COUNSEL FOR THE ADMINISTRATIVE AGENT, IN CONNECTION WITH ANY WAIVER OR CONSENT
HEREUNDER OR ANY AMENDMENT HEREOF OR ANY DEFAULT OR ALLEGED DEFAULT HEREUNDER;
AND (II) IF AN EVENT OF DEFAULT OCCURS, ALL COSTS AND EXPENSES INCURRED BY THE
ADMINISTRATIVE AGENT, INCLUDING REASONABLE FEES AND DISBURSEMENTS OF COUNSEL, IN
CONNECTION WITH SUCH EVENT OF DEFAULT AND COLLECTION, BANKRUPTCY, INSOLVENCY AND
OTHER ENFORCEMENT PROCEEDINGS RESULTING THEREFROM.
(B)
THE BORROWER AGREES TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE
LEAD ARRANGERS AND EACH LENDER, THEIR RESPECTIVE AFFILIATES AND THE RESPECTIVE
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES OF THE FOREGOING (EACH AN
"INDEMNITEE") AND HOLD EACH INDEMNITEE HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES OF ANY KIND, INCLUDING,
38
WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL, WHICH MAY
BE INCURRED BY SUCH INDEMNITEE IN CONNECTION WITH ANY INVESTIGATIVE,
ADMINISTRATIVE OR JUDICIAL PROCEEDING (WHETHER OR NOT SUCH INDEMNITEE SHALL BE
DESIGNATED A PARTY THERETO) BROUGHT OR THREATENED RELATING TO OR ARISING OUT OF
THE LOAN DOCUMENTS OR ANY ACTUAL OR PROPOSED USE OF PROCEEDS OF LOANS HEREUNDER;
PROVIDED THAT (I) NO INDEMNITEE SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER
FOR SUCH INDEMNITEE'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED
IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION AND
(II) THE BORROWER SHALL NOT BE LIABLE FOR ANY SETTLEMENT ENTERED INTO BY AN
INDEMNITEE WITHOUT ITS CONSENT (WHICH SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED).
(C)
EACH INDEMNITEE AGREES TO GIVE THE BORROWER PROMPT WRITTEN NOTICE
AFTER IT RECEIVES ANY NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUIT OR
PROCEEDING FOR WHICH SUCH INDEMNITEE MAY WISH TO CLAIM INDEMNIFICATION PURSUANT
TO SUBSECTION (B).
THE BORROWER SHALL HAVE THE