TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND (Y) ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE
EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE AND ADMINISTRATION OF THIS
AGREEMENT (COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), IN EACH CASE TO THE
EXTENT THE PARENT BORROWER WOULD BE REQUIRED TO DO SO PURSUANT TO SUBSECTION
10.5 OF THE REVOLVING CREDIT AGREEMENT, AND IN ANY EVENT EXCLUDING ANY TAXES OR
OTHER INDEMNIFIED LIABILITIES ARISING FROM GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE REVOLVING COLLATERAL AGENT, THE ADMINISTRATIVE AGENT OR ANY
OTHER SECURED PARTY.
(C)
THE AGREEMENTS IN THIS SUBSECTION 9.4 SHALL
SURVIVE REPAYMENT OF THE OBLIGATIONS AND ALL OTHER AMOUNTS PAYABLE UNDER THE
REVOLVING CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
9.5
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE
BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE GRANTING PARTIES, THE
REVOLVING COLLATERAL AGENT AND THE SECURED PARTIES AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS; PROVIDED THAT NO GRANTING PARTY MAY ASSIGN, TRANSFER OR
DELEGATE ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF THE REVOLVING COLLATERAL AGENT.
9.6
SET-OFF.
EACH GUARANTOR HEREBY IRREVOCABLY
AUTHORIZES EACH OF THE ADMINISTRATIVE AGENT AND THE REVOLVING COLLATERAL AGENT
AND EACH OTHER SECURED PARTY AT ANY TIME AND FROM TIME TO TIME WITHOUT NOTICE TO
SUCH GUARANTOR, ANY OTHER GUARANTOR OR ANY OF THE BORROWERS, ANY SUCH NOTICE
BEING EXPRESSLY WAIVED BY EACH GUARANTOR AND BY SUCH BORROWER, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT UNDER SUBSECTION 8(A) OF THE REVOLVING CREDIT AGREEMENT SO
LONG AS ANY AMOUNT REMAINS UNPAID AFTER IT BECOMES DUE AND PAYABLE BY SUCH
GUARANTOR HEREUNDER, TO SET OFF AND APPROPRIATE AND APPLY AGAINST ANY SUCH
AMOUNT ANY AND ALL DEPOSITS (GENERAL OR SPECIAL, TIME OR DEMAND,
45
PROVISIONAL OR FINAL) (OTHER THAN THE COLLATERAL PROCEEDS ACCOUNT), IN ANY
CURRENCY, AND ANY OTHER CREDITS, INDEBTEDNESS OR CLAIMS, IN ANY CURRENCY, IN
EACH CASE WHETHER DIRECT OR INDIRECT, ABSOLUTE OR CONTINGENT, MATURED OR
UNMATURED, AT ANY TIME HELD OR OWING BY THE REVOLVING COLLATERAL AGENT, THE
ADMINISTRATIVE AGENT OR SUCH OTHER SECURED PARTY TO OR FOR THE CREDIT OR THE
ACCOUNT OF SUCH GUARANTOR, OR ANY PART THEREOF IN SUCH AMOUNTS AS THE REVOLVING
COLLATERAL AGENT, THE ADMINISTRATIVE AGENT OR SUCH OTHER SECURED PARTY MAY
ELECT.
THE REVOLVING COLLATERAL AGENT, THE ADMINISTRATIVE AGENT AND EACH OTHER
SECURED PARTY SHALL NOTIFY SUCH GUARANTOR PROMPTLY OF ANY SUCH SET-OFF AND THE
APPLICATION MADE BY THE REVOLVING COLLATERAL AGENT, THE ADMINISTRATIVE AGENT OR
SUCH OTHER SECURED PARTY OF THE PROCEEDS THEREOF; PROVIDED THAT THE FAILURE TO
GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SET-OFF AND APPLICATION.
THE RIGHTS OF THE REVOLVING COLLATERAL AGENT, THE ADMINISTRATIVE AGENT AND EACH
OTHER SECURED PARTY UNDER THIS SUBSECTION 9.6 ARE IN ADDITION TO OTHER RIGHTS
AND REMEDIES (INCLUDING, WITHOUT LIMITATION, OTHER RIGHTS OF SET-OFF) WHICH THE
REVOLVING COLLATERAL AGENT,