NEW YORK BANKING DAYS AFTER RECEIPT OF NOTICE OF SUCH
FAILURE, (II) FILE A PETITION OR OTHERWISE COMMENCE OR AUTHORIZE THE
COMMENCEMENT OF
A PROCEEDING OR CASE UNDER ANY BANKRUPTCY, REORGANIZATION, OR
SIMILAR LAW FOR THE PROTECTION OF CREDITORS OR HAVE ANY SUCH PETITION FILED OR
PROCEEDING COMMENCED AGAINST IT, (III) OTHERWISE BECOME BANKRUPT OR INSOLVENT
(HOWEVER EVINCED), (IV) BE UNABLE TO PAY ITS DEBTS AS THEY FALL DUE, OR (V) FAIL
TO GIVE ADEQUATE SECURITY FOR OR ASSURANCE OF ITS ABILITY TO PERFORM ITS
OBLIGATIONS HEREUNDER OR THEREUNDER WITHIN TWO (2) NEW YORK BANKING DAYS AFTER
RECEIPT OF A REASONABLE REQUEST THEREFOR, THE OTHER PARTY (THE "PERFORMING
PARTY") SHALL HAVE THE RIGHT, IMMEDIATELY AND WITHOUT LIABILITY, TO LIQUIDATE
AND CLOSE OUT ANY OR ALL FORWARD CONTRACTS, INCLUDING, WITHOUT LIMITATION,
PURCHASE ORDERS, THEN OUTSTANDING BETWEEN THE PARTIES.
(B)
IN THE EVENT OF THE FOREGOING, THE PERFORMING PARTY, MAY, BUT
SHALL NOT BE OBLIGATED TO, (I) CLOSE OUT EACH SUCH FORWARD CONTRACT AT ITS
MARKET VALUE AS REASONABLY DETERMINED BY THE PERFORMING PARTY AT SUCH TIME (SO
THAT A SETTLEMENT PAYMENT IN AN AMOUNT EQUAL TO THE DIFFERENCE, IF ANY, BETWEEN
THE THEN PREVAILING MARKET VALUE AND THE VALUE SPECIFIED IN SUCH CONTRACT SHALL
BE DUE TO MGPI UNDER THAT FORWARD CONTRACT IF SUCH MARKET VALUE IS GREATER THAN
SUCH CONTRACT VALUE AND SHALL BE DUE TO MANUFACTURER UNDER THAT FORWARD CONTRACT
IF THE OPPOSITE IS THE CASE), (II) SET OFF ALL MARKET DAMAGES SO DETERMINED AND
PAYABLE BY EACH OF THE PARTIES TO THE OTHER AND (III) SET OFF ALL MARGIN HELD BY
EITHER TO SECURE THE OBLIGATIONS OF THE OTHER PARTY (INCLUDING ALL PAYMENTS DUE
TO THE OTHER PARTY WITH RESPECT TO DELIVERIES RECEIVED FROM SUCH OTHER PARTY,
WHICH PAYMENTS, PRIOR TO PAYMENT, SHALL BE DEEMED TO HELD BY EACH AS MARGIN TO
SECURE THE OTHER PARTY'S OBLIGATIONS FROM TIME TO TIME INCURRED); WHEREUPON ALL
SUCH AMOUNTS SHALL BE AGGREGATED OR NETTED TO A SINGLE LIQUIDATED AMOUNT PAYABLE
WITHIN (1) BUSINESS DAY BY THE PARTY OWING THE GREATER SUCH AMOUNT TO THE OTHER.
(C)
THE PERFORMING PARTY'S RIGHTS UNDER THIS SECTION SHALL BE IN
ADDITION TO, AND NOT IN LIMITATION OR EXCLUSION OF, ANY OTHER RIGHTS WHICH THE
PERFORMING PARTY MAY HAVE (WHETHER BY AGREEMENT, OPERATION OF LAW, OR
OTHERWISE), INCLUDING ANY RIGHTS AND REMEDIES UNDER THE UNIFORM COMMERCIAL
CODE.
THE NON-PERFORMING PARTY SHALL INDEMNIFY AND HOLD THE PERFORMING PARTY
HARMLESS FROM AND AGAINST ALL COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) INCURRED IN THE EXERCISE OF ANY REMEDIES HEREUNDER.
IF A
DEFAULT OCCURS, THE PERFORMING PARTY, WITHOUT LIMITATION OF ITS RIGHTS
HEREUNDER, MAY SET OFF AMOUNTS WHICH THE NON-PERFORMING PARTY OWES TO IT AGAINST
ANY AMOUNT WHICH IT OWES TO THE NON-PERFORMING PARTY (WHETHER HEREUNDER, UNDER A
FORWARD CONTRACT, OR OTHERWISE AND WHETHER OR NOT THEN DUE).
THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT CONSTITUTES A FORWARD CONTRACT FOR THE PURPOSES
OF SECTION 556 OF THE U.S. BANKRUPTCY CODE.
18.
INDEMNITIES.
(A)
MANUFACTURER WILL INDEMNIFY, DEFEND AND WILL HOLD