or might have by its terms accrued voting power by reason
of the happening of any contingency.
Working Capital:
shall have the meaning specified in subsection 7.3.
SECTION 10.
SETOFFS.
If the Borrower becomes insolvent, howsoever evidenced, or any Event of Default
occurs and is continuing, any Indebtedness from the Lenders to the Borrower or
any Subsidiary may, without regard to the value or adequacy of any collateral,
be offset and applied toward the payment of any Indebtedness from the Borrower
to the Lenders, whether or not such Indebtedness, or any part thereof shall then
be due provided, that Agent or any lender executing such right shall promptly
provide notice thereof to Borrower and any affected Subsidiary.
SECTION 11.
EXPENSES; INDEMNIFICATION.
(A)
WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE CONSUMMATED, THE BORROWER AGREES (I) TO PAY ALL
REASONABLE EXPENSES, INCLUDING REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR
THE AGENT, WHICH THE AGENT HAS INCURRED OR MAY HEREAFTER INCUR IN CONNECTION
WITH THE PREPARATION OF THIS AGREEMENT, THE LOAN DOCUMENTS, THE NOTES, AND ALL
OTHER DOCUMENTS RELATED HERETO AND THERETO (INCLUDING ANY AMENDMENT, CONSENT OR
WAIVER HEREOF AND/OR THEREOF) AND THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
PROTECTION, PRESERVATION AND/OR ENFORCEMENT OF THE RIGHTS OF THE LENDERS
HEREUNDER OR UNDER THE NOTES OR THE LOAN DOCUMENTS (WHETHER IN CONNECTION WITH A
PERMITTED ACQUISITION OR OTHERWISE) OR IN THE EVENT OF A DEFAULT HEREUNDER OR
THEREUNDER (INCLUDING WITHOUT LIMITATION AMOUNTS INCURRED WITH RESPECT TO ANY
SO-CALLED "WORKOUT" OF THE LOANS) AND (II) TO PAY ALL TAXES (OTHER THAN THE
LENDERS' INCOME TAXES) AND FEES (INCLUDING INTEREST AND PENALTIES), INCLUDING
WITHOUT LIMITATION ALL RECORDING AND FILING FEES, TRANSFER AND DOCUMENTARY STAMP
AND SIMILAR TAXES, WHICH MAY BE PAYABLE IN RESPECT OF THE EXECUTION AND DELIVERY
OF THIS AGREEMENT, THE LOAN DOCUMENTS, THE NOTES, AND ALL OTHER DOCUMENTS
RELATED HERETO AND THERETO (INCLUDING ANY AMENDMENT, CONSENT OR WAIVER HEREAFTER
REQUESTED BY THE BORROWER HEREUNDER OR THEREUNDER) AND TO INDEMNIFY THE AGENT
AND LENDERS AND HOLD THE AGENTS AND LENDERS HARMLESS AGAINST ANY LOSS OR
LIABILITY RESULTING FROM NON-PAYMENT OR DELAY IN PAYMENT OF ANY SUCH TAX.
THE
BORROWER HEREBY AUTHORIZES THE AGENT TO PAY ALL SUCH AMOUNTS DESCRIBED ABOVE TO
THE AGENT OR THE LENDERS, AS APPLICABLE, AND TO CHARGE THE SAME TO THE OPERATING
ACCOUNT OR ANY OTHER DEPOSITORY ACCOUNT MAINTAINED BY THE BORROWER WITH THE
AGENT IF THE SAME ARE NOT PAID WITHIN FIVE (5) BANKING DAYS AFTER THE AGENT
NOTIFIES THE BORROWER IN WRITING OF THE AMOUNTS OWED.
46
(B)
THE BORROWER HEREBY AGREES TO INDEMNIFY THE
AGENT AND LENDERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
ATTORNEYS AND EACH OTHER PERSON, IF ANY, WHO CONTROLS ANY LENDER, AND WILL HOLD
THE AGENT AND LENDERS AND SUCH OTHER PERSONS HARMLESS FROM AND AGAINST ANY AND
ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, JUDGMENTS AND EXPENSES (INCLUDING
WITHOUT LIMITATION ALL REASONABLE FEES AND EXPENSES OF COUNSEL AND ALL EXPENSES
OF LITIGATION OR PREPARATION THEREFOR) WHICH THE AGENT AND LENDERS OR SUCH OTHER