SECTION 11.11 SHALL CONTROL AND SUPERSEDE EVERY
OTHER PROVISION OF ALL AGREEMENTS BETWEEN THE BORROWER, THE GUARANTORS AND THE
BANK.
11.12
INDEMNIFICATION.
EACH OF THE LOAN PARTIES AGREES TO
INDEMNIFY, DEFEND, AND SAVE HARMLESS THE BANK AND ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AND ATTORNEYS, AND EACH OF THEM (THE "INDEMNIFIED PARTIES"),
FROM AND AGAINST ALL CLAIMS, ACTIONS, SUITS, AND OTHER LEGAL PROCEEDINGS,
DAMAGES, COSTS, INTEREST, CHARGES, REASONABLE COUNSEL FEES, AND OTHER EXPENSES
AND PENALTIES WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUSTAIN OR INCUR BY
REASON OF OR ARISING OUT OF (I) THE ISSUANCE OF ANY LETTER OF CREDIT HEREUNDER,
THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE NOTE AND THE OTHER
INTERNATIONAL LOAN DOCUMENTS AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED THEREBY AND THE EXERCISE AND ENFORCEMENT OF ANY OF THE BANK'S
RIGHTS UNDER THIS AGREEMENT, THE NOTE AND THE OTHER INTERNATIONAL LOAN DOCUMENTS
OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES, COSTS, AND EXPENSES
INCURRED BY ANY OF THE INDEMNIFIED PARTIES IN INVESTIGATING, PREPARING FOR,
DEFENDING AGAINST, OR PROVIDING EVIDENCE, PRODUCING DOCUMENTS, OR TAKING ANY
OTHER ACTION IN RESPECT OF ANY COMMENCED OR THREATENED LITIGATION UNDER ANY
FEDERAL SECURITIES LAW OR ANY SIMILAR LAW OF ANY JURISDICTION OR AT COMMON LAW
OR (II) ANY VIOLATIONS OF ANY LAW OR ANY ACTION TAKEN OR OMITTED TO BE TAKEN
WHICH COULD RESULT IN A VIOLATION OF ANY ENVIRONMENTAL LAW, OR IMPOSE ANY
LIABILITY ON THE INDEMNIFIED PARTIES FOR DAMAGE TO HEALTH OR THE ENVIRONMENT;
PROVIDED HOWEVER THAT NO INDEMNIFIED PARTY SHALL BE ENTITLED TO THE BENEFITS OF
THIS SECTION 11.12 TO THE EXTENT OF ANY BAD FAITH, GROSS NEGLIGENCE, OR WILLFUL
MISCONDUCT BY AN
35
INDEMNIFIED PARTY.
THIS AGREEMENT IS INTENDED TO PROTECT AND INDEMNIFY THE
INDEMNIFIED PARTIES AGAINST ALL RISKS HEREBY ASSUMED BY THE LOAN PARTIES.
THE
OBLIGATIONS OF THE LOAN PARTIES UNDER THIS SECTION 11.12 SHALL SURVIVE ANY
EXERCISE OF THE POWER OF SALE GRANTED IN ANY INTERNATIONAL SECURITY DOCUMENT TO
WHICH ANY OF THE LOAN PARTIES ARE A PARTY, ANY FORECLOSURE OF THE LIENS CREATED
BY ANY INTERNATIONAL SECURITY DOCUMENT TO WHICH ANY OF THE LOAN PARTIES ARE A
PARTY, OR CONVEYANCE IN LIEU OF FORECLOSURE, THE REPAYMENT OF THE OBLIGATIONS,
THE DISCHARGE AND RELEASE OF ANY PERSON UNDER ANY INTERNATIONAL LOAN DOCUMENT
AND ANY TERMINATION OF THIS AGREEMENT.
11.13
PAYMENTS SET ASIDE.
TO THE EXTENT THAT THE BORROWER
MAKES A PAYMENT OR PAYMENTS TO THE BANK OR THE BANK ENFORCES ANY SECURITY
INTEREST OR EXERCISES ITS RIGHT OF SETOFF, AND SUCH PAYMENT OR PAYMENTS OR THE
PROCEEDS OF SUCH ENFORCEMENT OR SETOFF OR ANY PART THEREOF ARE SUBSEQUENTLY
INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE AND/OR
REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER OR ANY OTHER PERSON UNDER ANY
DEBTOR LAW OR EQUITABLE CAUSE, THEN, TO THE EXTENT OF SUCH RECOVERY, THE
OBLIGATION OR PART THEREOF ORIGINALLY INTENDED TO BE SATISFIED, AND ALL RIGHTS
AND REMEDIES THEREFOR, SHALL BE REVIVED AND SHALL CONTINUE IN FULL FORCE AND
EFFECT AS IF SUCH PAYMENT HAD NOT