THAN BY AN
AGREEMENT IN WRITING, SIGNED BY THE PARTY TO BE CHARGED. BORROWER ACKNOWLEDGES
THAT IT HAS BEEN ADVISED BY COUNSEL IN CONNECTION WITH THE EXECUTION OF THIS
AGREEMENT AND OTHER DOCUMENTS AND IS NOT RELYING UPON ORAL REPRESENTATIONS OR
STATEMENTS INCONSISTENT WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT.
13.3
SUCCESSORS AND ASSIGNS THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF BORROWER, BRASCAN, ALL FUTURE HOLDERS OF THE OBLIGATIONS
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT THAT BORROWER MAY NOT ASSIGN
OR TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE
PRIOR WRITTEN CONSENT OF BRASCAN.
13.4
APPLICATION OF PAYMENTS. TO THE EXTENT THAT BORROWER MAKES A
PAYMENT OR BRASCAN RECEIVES ANY PAYMENT FOR BORROWER'S BENEFIT, WHICH ARE
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE
OR REQUIRED TO BE REPAID TO A TRUSTEE, DEBTOR IN POSSESSION, RECEIVER, CUSTODIAN
OR ANY OTHER PARTY UNDER ANY BANKRUPTCY LAW, COMMON LAW OR
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EQUITABLE CAUSE, THEN, TO SUCH EXTENT, THE OBLIGATIONS OR PART THEREOF INTENDED
TO BE SATISFIED SHALL BE REVIVED AND CONTINUE AS IF SUCH PAYMENT OR PROCEEDS HAD
NOT BEEN RECEIVED BY BRASCAN.
13.5
INDEMNITY. BORROWER SHALL INDEMNIFY BRASCAN, AND EACH OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, AFFILIATES, ATTORNEYS, EMPLOYEES AND BRASCAN'S
FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY
KIND OR NATURE WHATSOEVER (INCLUDING FEES AND DISBURSEMENTS OF COUNSEL) WHICH
MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST BRASCAN IN ANY CLAIM,
LITIGATION, PROCEEDING OR INVESTIGATION INSTITUTED OR CONDUCTED BY ANY
GOVERNMENTAL BODY OR INSTRUMENTALITY OR ANY OTHER PERSON WITH RESPECT TO ANY
ASPECT OF, OR ANY TRANSACTION CONTEMPLATED BY, OR REFERRED TO IN, OR ANY MATTER
RELATED TO, THIS AGREEMENT OR THE OTHER DOCUMENTS, WHETHER OR NOT BRASCAN IS A
PARTY THERETO, EXCEPT TO THE EXTENT THAT ANY OF THE FOREGOING ARISES OUT OF THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE PARTY BEING INDEMNIFIED (AS
DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NON-APPEALABLE
JUDGMENT). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THIS INDEMNITY
SHALL EXTEND TO ANY LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER (INCLUDING FEES AND DISBURSEMENTS OF COUNSEL) ASSERTED AGAINST
OR INCURRED BY ANY OF THE INDEMNITEES DESCRIBED ABOVE IN THIS SECTION 13.5 BY
ANY PERSON UNDER ANY ENVIRONMENTAL LAWS OR SIMILAR LAWS BY REASON OF BORROWER'S
OR ANY OTHER PERSON'S FAILURE TO COMPLY WITH LAWS APPLICABLE TO SOLID OR
HAZARDOUS WASTE MATERIALS, INCLUDING HAZARDOUS SUBSTANCES AND HAZARDOUS WASTE,
OR OTHER TOXIC SUBSTANCES. ADDITIONALLY, IF ANY TAXES (EXCLUDING TAXES IMPOSED
UPON OR MEASURED SOLELY BY THE NET INCOME OF BRASCAN, BUT INCLUDING ANY
INTANGIBLES TAXES, STAMP TAX, RECORDING TAX OR FRANCHISE TAX) SHALL BE PAYABLE
BY BRASCAN ON ACCOUNT OF THE EXECUTION OR DELIVERY OF THIS AGREEMENT, OR THE
EXECUTION, DELIVERY, ISSUANCE OR RECORDING OF ANY OF THE OTHER DOCUMENTS, OR THE
CREATION OR REPAYMENT OF