Related Person through any foreclosure
action, in each case except to the extent such Environmental Liabilities (i) are
incurred solely following foreclosure by any Secured Party or following any
Secured Party having become the successor-in-interest to any Loan Party and
(ii) are attributable solely to acts of such Indemnitee.
SECTION 4.5
SURVIVAL.
ANY INDEMNIFICATION OR OTHER PROTECTION
PROVIDED TO
117
ANY INDEMNITEE PURSUANT TO ANY LOAN DOCUMENT (INCLUDING PURSUANT TO SECTION 2.17
(TAXES), SECTION 2.16 (BREAKAGE COSTS; INCREASED COSTS; CAPITAL REQUIREMENTS),
ARTICLE X (THE ADMINISTRATIVE AGENT), SECTION 11.3 (COSTS AND EXPENSES),
SECTION 11.4 (INDEMNITIES) OR THIS SECTION 11.5) AND ALL REPRESENTATIONS AND
WARRANTIES MADE IN ANY LOAN DOCUMENT SHALL (A) SURVIVE THE TERMINATION OF THE
COMMITMENTS AND THE PAYMENT IN FULL OF OTHER OBLIGATIONS AND (B) INURE TO THE
BENEFIT OF ANY PERSON THAT AT ANY TIME HELD A RIGHT THEREUNDER (AS AN INDEMNITEE
OR OTHERWISE) AND, THEREAFTER, ITS SUCCESSORS AND PERMITTED ASSIGNS.
SECTION 4.6
LIMITATION OF LIABILITY FOR CERTAIN DAMAGES.
IN NO
EVENT SHALL ANY INDEMNITEE BE LIABLE ON ANY THEORY OF LIABILITY FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY LOSS OF PROFITS,
BUSINESS OR ANTICIPATED SAVINGS).
EACH OF HOLDINGS AND THE BORROWER HEREBY
WAIVES, RELEASES AND AGREES (AND SHALL CAUSE EACH OTHER LOAN PARTY TO WAIVE,
RELEASE AND AGREE) NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
SECTION 4.7
LENDER-CREDITOR RELATIONSHIP.
THE RELATIONSHIP BETWEEN
THE LENDERS, THE L/C ISSUERS AND THE ADMINISTRATIVE AGENT, ON THE ONE HAND, AND
THE LOAN PARTIES, ON THE OTHER HAND, IS SOLELY THAT OF LENDER AND CREDITOR.
NO
SECURED PARTY HAS ANY FIDUCIARY RELATIONSHIP OR DUTY TO ANY LOAN PARTY ARISING
OUT OF OR IN CONNECTION WITH, AND THERE IS NO AGENCY, TENANCY OR JOINT VENTURE
RELATIONSHIP BETWEEN THE SECURED PARTIES AND THE LOAN PARTIES BY VIRTUE OF, ANY
LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREIN.
SECTION 4.8
RIGHT OF SETOFF.
EACH OF THE ADMINISTRATIVE AGENT, EACH
LENDER, EACH L/C ISSUER AND EACH AFFILIATE (INCLUDING EACH BRANCH OFFICE
THEREOF) OF ANY OF THEM IS HEREBY AUTHORIZED, WITHOUT NOTICE OR DEMAND (EACH OF
WHICH IS HEREBY WAIVED BY HOLDINGS AND THE BORROWER), AT ANY TIME AND FROM TIME
TO TIME DURING THE CONTINUANCE OF ANY EVENT OF DEFAULT AND TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, TO SET OFF AND APPLY ANY AND ALL
DEPOSITS (WHETHER GENERAL OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL) AT
ANY TIME HELD AND OTHER INDEBTEDNESS, CLAIMS OR OTHER OBLIGATIONS AT ANY TIME
OWING BY THE ADMINISTRATIVE AGENT, SUCH LENDER, SUCH L/C ISSUER OR ANY OF THEIR
RESPECTIVE AFFILIATES TO OR FOR THE CREDIT OR THE ACCOUNT OF HOLDINGS OR THE
BORROWER AGAINST ANY OBLIGATION OF ANY LOAN PARTY NOW OR HEREAFTER EXISTING,
WHETHER OR NOT ANY DEMAND WAS MADE UNDER ANY LOAN DOCUMENT WITH RESPECT TO SUCH
OBLIGATION AND EVEN THOUGH SUCH OBLIGATION MAY BE UNMATURED.
EACH