who will be obliged to agree, among other things, to acquire such
investment property for their own account, for investment and not with a view to
the distribution or resale thereof. To the extent permitted by law, each of the
Grantors agrees that private sales may be at prices and other terms less
favorable to the Grantors than if such investment property were sold at a public
sale and that the Secured Parties shall have no obligation to delay the sale of
any such portion of the Collateral for the period of time necessary
16
to permit the issuer of such investment property to register or qualify such
investment property, even if such issuer would, or should, proceed to register
or qualify such investment property for public sale. Each of the Grantors agrees
that private sales made under the foregoing circumstances shall be deemed to
have been made in a "commercially reasonable" manner.
SECTION 16.
INDEMNIFICATION AND EXPENSES.
(A)
WITHOUT LIMITING ANY OF THE
GRANTORS' OBLIGATIONS UNDER SECTION 3 HEREOF, EACH OF THE GRANTORS HEREBY AGREES
TO INDEMNIFY AND DEFEND THE SECURED PARTIES (INCLUDING, FOR THE PURPOSES OF THIS
SECTION, THEIR AGENTS, CONSULTANTS AND ADVISORS (EACH, AN "INDEMNIFIED PARTY")),
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES AND LIABILITIES GROWING OUT OF OR
RESULTING FROM THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ENFORCEMENT OF
THIS AGREEMENT), EXCEPT CLAIMS, LOSSES OR LIABILITIES THAT ARE FINALLY
DETERMINED TO RESULT FROM AN INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
(B)
EACH OF THE GRANTORS SHALL, UPON DEMAND, PAY TO THE SECURED
PARTIES THE AMOUNT OF ANY AND ALL REASONABLE EXPENSES, INCLUDING THE FEES AND
OUT-OF-POCKET EXPENSES OR DISBURSEMENTS OF THEIR COUNSEL AND OF ANY EXPERTS AND
AGENTS, WHICH THE SECURED PARTIES MAY INCUR IN CONNECTION WITH (I) THE
NEGOTIATION OR PREPARATION OF, OR ANY CLOSING UNDER, AND THE PERFECTION OF
(INCLUDING ANY FILING OR RECORDING FEES) ANY AND ALL LIENS CONTEMPLATED BY, THIS
AGREEMENT, ANY AMENDMENTS AND MODIFICATIONS THERETO, AND TERMINATIONS THEREOF,
AND ANY OTHER RELATED DOCUMENTS, (II) THE CUSTODY, PRESERVATION, USE OR
OPERATION OF, OR THE SALE OF, COLLECTION FROM, OR OTHER REALIZATION UPON, ANY OF
THE COLLATERAL, AND (III) THE INTERPRETATION, PERFORMANCE OR ENFORCEMENT OF ANY
OF THE RIGHTS OF THE SECURED PARTIES. WITHOUT LIMITING IN ANY MANNER THE
GENERALITY OF THE FOREGOING, EACH OF THE GRANTORS SHALL PAY ALL REASONABLE
OUT-OF-POCKET COSTS AND EXPENSES OF THE SECURED PARTIES UPON FAILURE BY THE
GRANTORS TO PERFORM OR OBSERVE ANY OF THE PROVISIONS OF THIS AGREEMENT OR UPON
DEMAND IN CONNECTION WITH THE BANKRUPTCY OR OTHER INSOLVENCY PROCEEDING
INVOLVING A GRANTOR, IN EACH CASE, INCLUDING, WITHOUT LIMITATION, THE REASONABLE
FEES AND OUT-OF-POCKET EXPENSES OF COUNSEL FOR THE SECURED PARTIES AND OF ANY
CONSULTANTS OR EXPERT WITNESSES RETAINED BY THE SECURED PARTIES, WITH RESPECT TO
ANY ASPECT OF THE SECURED OBLIGATIONS OR OTHERWISE RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY. THE SECURED PARTIES SHALL NOT BE LIABLE TO THE GRANTORS FOR
DAMAGES AS A RESULT OF DELAYS, TEMPORARY WITHDRAWALS OF THE EQUIPMENT FROM
SERVICE OR