AND ISSUING BANK, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, ADVISORS AND COUNSEL AND
THEIR RESPECTIVE AFFILIATES (EACH SUCH PERSON BEING AN "INDEMNITEE"), HARMLESS
FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, COSTS OR
EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES) IMPOSED ON, INCURRED BY OR
ASSERTED AGAINST ANY OF THEM IN CONNECTION WITH ANY LITIGATION, INVESTIGATION,
CLAIM OR PROCEEDING COMMENCED OR THREATENED RELATED TO THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE OR ADMINISTRATION OF
THIS AGREEMENT, ANY OTHER FINANCING AGREEMENTS, OR ANY UNDERTAKING OR PROCEEDING
RELATED TO ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY
110
ACT, OMISSION, EVENT OR TRANSACTION RELATED OR ATTENDANT THERETO, INCLUDING
AMOUNTS PAID IN SETTLEMENT, COURT COSTS, AND THE FEES AND EXPENSES OF COUNSEL
EXCEPT THAT BORROWERS AND GUARANTORS SHALL NOT HAVE ANY OBLIGATION UNDER THIS
SECTION 11.5 TO INDEMNIFY AN INDEMNITEE WITH RESPECT TO A MATTER COVERED HEREBY
RESULTING FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH INDEMNITEE AS
DETERMINED PURSUANT TO A FINAL, NON-APPEALABLE ORDER OF A COURT OF COMPETENT
JURISDICTION (BUT WITHOUT LIMITING THE OBLIGATIONS OF BORROWERS OR GUARANTORS AS
TO ANY OTHER INDEMNITEE).
TO THE EXTENT THAT THE UNDERTAKING TO INDEMNIFY, PAY
AND HOLD HARMLESS SET FORTH IN THIS SECTION MAY BE UNENFORCEABLE BECAUSE IT
VIOLATES ANY LAW OR PUBLIC POLICY, BORROWERS AND GUARANTORS SHALL PAY THE
MAXIMUM PORTION WHICH IT IS PERMITTED TO PAY UNDER APPLICABLE LAW TO AGENT AND
LENDERS IN SATISFACTION OF INDEMNIFIED MATTERS UNDER THIS SECTION.
TO THE
EXTENT PERMITTED BY APPLICABLE LAW, NO BORROWER OR GUARANTOR SHALL ASSERT, AND
EACH BORROWER AND GUARANTOR HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON
ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
(AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR
AS A RESULT OF, THIS AGREEMENT, ANY OF THE OTHER FINANCING AGREEMENTS OR ANY
UNDERTAKING OR TRANSACTION CONTEMPLATED HEREBY.
NO INDEMNITEE REFERRED TO ABOVE
SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF
ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS,
ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTION
CONTEMPLATED HEREBY OR THEREBY.
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE
PAYABLE UPON DEMAND. THE FOREGOING INDEMNITY SHALL SURVIVE THE PAYMENT OF THE
OBLIGATIONS AND THE TERMINATION OR NON-RENEWAL OF THIS AGREEMENT.
11.6
CURRENCY INDEMNITY.
IF, FOR THE PURPOSES OF OBTAINING JUDGMENT IN ANY
COURT IN ANY JURISDICTION WITH RESPECT TO THIS AGREEMENT OR ANY OF THE OTHER
FINANCING AGREEMENTS, IT BECOMES NECESSARY TO CONVERT INTO THE CURRENCY OF SUCH
JURISDICTION (THE "JUDGMENT CURRENCY") ANY AMOUNT DUE UNDER THIS AGREEMENT OR
UNDER ANY OF THE OTHER FINANCING AGREEMENTS IN ANY CURRENCY OTHER THAN THE
JUDGMENT CURRENCY (THE "CURRENCY DUE"), THEN CONVERSION SHALL BE MADE AT THE
EXCHANGE RATE AT WHICH AGENT IS ABLE, ON THE RELEVANT DATE, TO PURCHASE THE
CURRENCY DUE WITH THE JUDGMENT CURRENCY PREVAILING ON THE BUSINESS DAY BEFORE
THE DAY ON WHICH