ANY DEFICIENCY TO THE COLLATERAL AGENT.
(D)
THE COLLATERAL AGENT MAY USE (AND IS HEREBY GRANTED A LICENSE TO USE),
IN CONNECTION WITH ANY ASSEMBLY, PREPARATION FOR DISPOSITION OR DISPOSITION OF
THE COLLATERAL, ANY OF THE TRADEMARKS, COPYRIGHTS, PATENTS, TECHNICAL PROCESSES,
TRADE NAMES, SERVICE MARKS OR TRADE STYLES AND OTHER INTELLECTUAL PROPERTY USED
BY THE BORROWERS, WITHOUT PAYMENT OR ADDITIONAL COMPENSATION THEREFOR.
(E)
THE BORROWERS RECOGNIZE THAT THE COLLATERAL AGENT MAY BE UNABLE TO
EFFECT A PUBLIC SALE OF ALL OR PART OF THE COLLATERAL CONSISTING OF INVESTMENT
PROPERTY BY REASON OF CERTAIN PROHIBITIONS CONTAINED IN THE SECURITIES ACT OF
1933, AS AMENDED, OR IN APPLICABLE DELAWARE OR OTHER STATES' SECURITIES LAWS AS
NOW OR HEREAFTER IN EFFECT, UNLESS REGISTRATION OR QUALIFICATION, AS THE CASE
MAY BE, IS ACCOMPLISHED. TO THE EXTENT PERMITTED BY LAW, THE BORROWERS
ACKNOWLEDGES THAT THE COLLATERAL AGENT MAY RESORT TO ONE OR MORE PRIVATE SALES
TO A SINGLE PURCHASER OR A RESTRICTED GROUP OF PURCHASERS 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, THE BORROWERS AGREE THAT PRIVATE SALES
MAY BE AT PRICES AND OTHER TERMS LESS FAVORABLE TO THE BORROWERS THAN IF SUCH
INVESTMENT PROPERTY WERE SOLD AT A PUBLIC SALE AND THAT THE COLLATERAL AGENT
SHALL HAVE NO OBLIGATION TO DELAY THE SALE OF ANY SUCH PORTION OF THE COLLATERAL
FOR THE PERIOD OF TIME NECESSARY 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.
THE BORROWERS AGREE THAT PRIVATE SALES MADE UNDER THE FOREGOING
CIRCUMSTANCES SHALL BE DEEMED TO HAVE BEEN MADE IN A "COMMERCIALLY REASONABLE"
MANNER.
SECTION 17.
INDEMNITY AND EXPENSES.
(A)
WITHOUT LIMITING ANY INDEMNITY PROVIDED UNDER THE NOTE PURCHASE
AGREEMENT OR ANY LOAN DOCUMENT, EACH BORROWER AGREES TO INDEMNIFY AND DEFEND THE
COLLATERAL AGENT (INCLUDING, FOR THE PURPOSES OF THIS SECTION 17, ITS AGENTS AND
AFFILIATES AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND ADVISORS AND
ANY OF THEIR AFFILIATES (EACH AN "INDEMNIFIED PARTY")), FROM AND AGAINST ANY AND
ALL CLAIMS, LOSSES AND LIABILITIES GROWING OUT OF OR RESULTING FROM THIS
SECURITY AGREEMENT OR ANY LOAN DOCUMENT (INCLUDING, WITHOUT LIMITATION,
ENFORCEMENT OF THIS SECURITY AGREEMENT), EXCEPT CLAIMS, LOSSES OR LIABILITIES
RESULTING FROM AN INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(B)
EACH BORROWER WILL UPON DEMAND PAY TO THE COLLATERAL AGENT THE AMOUNT
OF ANY AND ALL REASONABLE EXPENSES, INCLUDING THE FEES AND OUT-OF-POCKET
EXPENSES
15
OR DISBURSEMENTS OF ITS COUNSEL AND OF ANY EXPERTS AND AGENTS, WHICH THE
COLLATERAL AGENT MAY INCUR IN CONNECTION WITH (1) 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 SECURITY AGREEMENT AND
ANY OTHER RELATED DOCUMENTS, (2) THE CUSTODY, PRESERVATION, USE OR