THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND
REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; PROVIDED, HOWEVER, THAT
SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT
SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES RESULTED FROM THE
GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BAD FAITH, OR BREACH OF THE CONTRACTUAL
OBLIGATIONS OF SUCH INDEMNITEE OR WITH RESPECT TO A CLAIM BY ONE INDEMNITEE
AGAINST ANOTHER INDEMNITEE.
(C) ANY SUCH AMOUNTS PAYABLE AS PROVIDED HEREUNDER SHALL BE ADDITIONAL
GUARANTEED OBLIGATIONS.
ALL AMOUNTS DUE UNDER THIS SECTION 5.03 SHALL BE
PAYABLE ON WRITTEN DEMAND THEREFOR.
SECTION 5.04.
BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS.
WHENEVER IN THIS
AGREEMENT ANY OF THE PARTIES HERETO IS REFERRED TO, SUCH REFERENCE SHALL BE
DEEMED TO INCLUDE THE SUCCESSORS AND ASSIGNS OF SUCH PARTY (SUBJECT TO THE
PROVISIONS OF THE CREDIT AGREEMENT), AND ALL COVENANTS, PROMISES AND AGREEMENTS
BY OR ON BEHALF OF THE GUARANTORS THAT ARE CONTAINED IN THIS AGREEMENT SHALL
BIND AND INURE TO THE BENEFIT
7
EACH GUARANTOR AND OF ITS RESPECTIVE SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON EACH GUARANTOR AND THE ADMINISTRATIVE AGENT AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF EACH
GUARANTOR, THE ADMINISTRATIVE AGENT AND THE OTHER CREDIT PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT THAT NO GUARANTOR SHALL HAVE THE RIGHT
TO ASSIGN OR TRANSFER ITS RIGHTS OR OBLIGATIONS HEREUNDER (AND ANY SUCH
ATTEMPTED ASSIGNMENT OR TRANSFER SHALL BE VOID) EXCEPT AS EXPRESSLY PERMITTED BY
THIS AGREEMENT OR THE CREDIT AGREEMENT.
THIS AGREEMENT SHALL BE CONSTRUED AS A
SEPARATE AGREEMENT WITH RESPECT TO EACH GUARANTOR AND MAY BE AMENDED, MODIFIED,
SUPPLEMENTED, WAIVED OR RELEASED WITH RESPECT TO ANY GUARANTOR WITHOUT THE
APPROVAL OF ANY OTHER GUARANTOR AND WITHOUT AFFECTING THE OBLIGATIONS OF ANY
OTHER GUARANTOR HEREUNDER.
SECTION 5.05.
SURVIVAL OF AGREEMENT.
ALL COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES MADE BY THE GUARANTORS HEREIN AND IN THE
CERTIFICATES OR OTHER INSTRUMENTS PREPARED OR DELIVERED IN CONNECTION WITH OR
PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE CONSIDERED TO
HAVE BEEN RELIED UPON BY THE ADMINISTRATIVE AGENT AND THE CREDIT PARTIES AND
SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE MAKING OF ANY LOANS, AND SHALL CONTINUE IN FULL FORCE AND
EFFECT AS LONG AS THE OBLIGATIONS ARE OUTSTANDING AND UNPAID, AND AS LONG AS THE
COMMITMENTS HAVE NOT EXPIRED OR TERMINATED.
SECTION 5.06.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED COUNTERPARTS (AND
BY DIFFERENT PARTIES HERETO ON DIFFERENT COUNTERPARTS), EACH OF WHICH SHALL
CONSTITUTE AN ORIGINAL, BUT ALL OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE A
SINGLE CONTRACT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE TO
THIS AGREEMENT BY TELECOPY OR OTHER ELECTRONIC IMAGE SCAN TRANSMISSION (E.G.,
"PDF" OR "TIF" VIA E-MAIL) SHALL BE AS EFFECTIVE AS DELIVERY OF A MANUALLY
EXECUTED COUNTERPART TO THIS AGREEMENT.
SECTION 5.07.
SEVERABILITY.
IN THE EVENT ANY ONE OR MORE OF THE PROVISIONS
CONTAINED IN