and each
Credit Party hereby, as a separate obligation and notwithstanding any such
judgment, agrees jointly and severally to indemnify such Entitled Person
against, and to pay such Entitled Person on demand, in the Original Currency,
the amount (if any) by which the sum originally due to such Entitled Person in
the Original Currency hereunder exceeds the amount of the Original Currency so
purchased and transferred.
Section 12.14
EXCULPATION PROVISIONS.
EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS
AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS,
CONDITIONS AND EFFECTS OF THIS AGREEMENT; THAT IT HAS BEEN REPRESENTED BY
INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING
ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED
THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT
IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS
RESPONSIBILITY FOR SUCH LIABILITY.
EACH PARTY HERETO AGREES AND COVENANTS THAT
IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD
NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT
"CONSPICUOUS."
Section 12.15
Collateral Matters; Secured Swap Agreements.
The benefit
of the Security Instruments and of the provisions of this Agreement relating to
any Collateral securing the Indebtedness shall also extend to and be available
to Secured Swap Parties on a pro rata basis (but subject to the terms of the
Loan Documents, including, without limitation, provisions thereof relating to
the application and priority of payments to the Secured Parties) in respect of
any obligations of the Parent or any Subsidiary which arise under Secured Swap
Agreements, including any Secured Swap Agreements entered into prior to the date
hereof.
No Secured Swap Party shall have any voting rights under any Loan
Document as a result of the existence of obligations owed to it under any
Secured Swap Agreement.
Section 12.16
Collateral Assignment of Swap Agreements.
(a)
Pursuant to the Security Instruments, each Credit Party is
required to pledge, assign and transfer (the "Swap Assignment") to the
Administrative Agent, for the benefit of the Secured Parties, as collateral
security for the prompt and complete payment and performance when due of the
Obligations (as defined therein), a first priority continuing security interest
in, lien on and right of setoff against, all of its right, title and interest in
and to each Swap Agreement to which it is a party, including each Swap Agreement
between such Credit Party and any Lender