OTHER
GRANTORS AND SEVERALLY, TO INDEMNIFY THE ADMINISTRATIVE AGENT AND THE HOLDERS OF
SECURED OBLIGATIONS (COLLECTIVELY, THE "INDEMNITEES"), AND THEIR RESPECTIVE
SUCCESSORS, ASSIGNS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL
LIABILITIES, DAMAGES, PENALTIES, SUITS, COSTS, AND EXPENSES OF ANY KIND AND
NATURE
(INCLUDING, WITHOUT LIMITATION, ALL EXPENSES OF LITIGATION OR
PREPARATION THEREFOR WHETHER OR NOT ANY INDEMNITEE IS A PARTY THERETO) IMPOSED
ON, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, OR THEIR RESPECTIVE
SUCCESSORS, ASSIGNS, AGENTS AND EMPLOYEES, IN ANY WAY RELATING TO OR ARISING OUT
OF THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE MANUFACTURE,
PURCHASE, ACCEPTANCE, REJECTION, OWNERSHIP, DELIVERY, LEASE, POSSESSION, USE,
OPERATION, CONDITION, SALE, RETURN OR OTHER DISPOSITION OF ANY COLLATERAL
(INCLUDING, WITHOUT LIMITATION, LATENT AND OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE BY ANY INDEMNITEE OR ANY GRANTOR, AND ANY CLAIM FOR PATENT,
TRADEMARK OR COPYRIGHT INFRINGEMENT); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS
TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR RELATED EXPENSES
17
ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM (A)
THE WILLFUL MISCONDUCT, BAD FAITH, FRAUD OR GROSS NEGLIGENCE OF SUCH INDEMNITEE,
ITS CONTROLLED AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS AND CONTROLLING PERSONS (EACH OFFICER, DIRECTOR, EMPLOYEE,
AGENT OR CONTROLLING PERSON OF ANY SUCH INDEMNITEE OR ANY OF SUCH ENTITY'S
CONTROLLED AFFILIATES, A "RELATED PARTY" OF SUCH ENTITY) (B) ANY MATERIAL BREACH
OF THE EXPRESS OBLIGATIONS OF SUCH INDEMNITEE OR ANY OF ITS AFFILIATES OR
RELATED PARTIES UNDER THE CREDIT AGREEMENT, OR (C) ANY DISPUTE SOLELY AMONG
INDEMNITEES (NOT ARISING AS A RESULT OF ANY ACT OR OMISSION BY ANY GRANTOR OR
ANY OF ITS AFFILIATES).
8.16.
SUBORDINATION OF INTERCOMPANY INDEBTEDNESS.
EACH GRANTOR AGREES
THAT ANY AND ALL CLAIMS OF SUCH GRANTOR AGAINST ANY OTHER GRANTOR (EACH AN
"OBLIGOR") WITH RESPECT TO ANY "INTERCOMPANY INDEBTEDNESS" (AS HEREINAFTER
DEFINED), ANY ENDORSER, OBLIGOR OR ANY OTHER GUARANTOR OF ALL OR ANY PART OF THE
SECURED OBLIGATIONS, OR AGAINST ANY OF ITS PROPERTIES SHALL BE SUBORDINATE AND
SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT, IN FULL AND IN CASH, OF ALL
SECURED OBLIGATIONS, PROVIDED THAT, AND NOT IN CONTRAVENTION OF THE FOREGOING,
SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AND NOTICE OF AN
EVENT OF DEFAULT HAS BEEN GIVEN BY THE ADMINISTRATIVE AGENT, SUCH GRANTOR MAY
MAKE LOANS TO AND RECEIVE PAYMENTS WITH RESPECT TO SUCH INTERCOMPANY
INDEBTEDNESS FROM EACH SUCH OBLIGOR TO THE EXTENT NOT PROHIBITED BY THE TERMS OF
THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS.
NOTWITHSTANDING ANY RIGHT
OF ANY GRANTOR TO ASK, DEMAND, SUE FOR, TAKE OR RECEIVE ANY PAYMENT FROM ANY
OBLIGOR, ALL RIGHTS, LIENS AND SECURITY INTERESTS OF SUCH GRANTOR, WHETHER NOW
OR HEREAFTER ARISING AND HOWSOEVER EXISTING, IN ANY ASSETS OF ANY OTHER OBLIGOR
SHALL BE AND ARE SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF SECURED
OBLIGATIONS AND THE ADMINISTRATIVE AGENT IN THOSE ASSETS.
NO GRANTOR SHALL HAVE
ANY RIGHT