INVESTMENT PROPERTY, TO
LIMIT PURCHASERS TO PERSONS WHO WILL AGREE, AMONG OTHER THINGS, TO ACQUIRE SUCH
SECURITIES COLLATERAL OR INVESTMENT PROPERTY FOR THEIR OWN ACCOUNT, FOR
INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION OR RESALE THEREOF.
EACH
PLEDGOR ACKNOWLEDGES THAT ANY SUCH PRIVATE SALES MAY BE AT PRICES AND ON TERMS
LESS FAVORABLE TO THE COLLATERAL AGENT THAN THOSE OBTAINABLE THROUGH A PUBLIC
SALE WITHOUT SUCH RESTRICTIONS (INCLUDING A PUBLIC OFFERING MADE PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT), AND, NOTWITHSTANDING SUCH
CIRCUMSTANCES, AGREES THAT ANY SUCH PRIVATE SALE SHALL BE DEEMED TO HAVE BEEN
MADE IN A COMMERCIALLY REASONABLE MANNER AND THAT THE COLLATERAL AGENT SHALL
HAVE NO OBLIGATION TO ENGAGE IN PUBLIC SALES AND NO OBLIGATION TO DELAY THE SALE
OF ANY SECURITIES COLLATERAL OR INVESTMENT PROPERTY FOR THE PERIOD OF TIME
NECESSARY TO PERMIT THE ISSUER THEREOF TO REGISTER IT FOR A FORM OF PUBLIC SALE
REQUIRING REGISTRATION UNDER THE SECURITIES ACT OR UNDER APPLICABLE STATE
SECURITIES LAWS, EVEN IF SUCH ISSUER WOULD AGREE TO DO SO.
(C)
IF THE COLLATERAL AGENT DETERMINES TO
EXERCISE ITS RIGHT TO SELL ANY OR ALL OF THE SECURITIES COLLATERAL OR INVESTMENT
PROPERTY, UPON WRITTEN REQUEST, THE APPLICABLE PLEDGOR SHALL FROM TIME TO TIME
FURNISH TO THE COLLATERAL AGENT ALL SUCH INFORMATION AS THE COLLATERAL AGENT MAY
REQUEST IN ORDER TO DETERMINE THE NUMBER OF SECURITIES INCLUDED IN THE
SECURITIES COLLATERAL OR INVESTMENT PROPERTY WHICH MAY BE SOLD BY THE COLLATERAL
AGENT AS EXEMPT TRANSACTIONS UNDER THE SECURITIES ACT AND THE RULES OF THE
SECURITIES AND EXCHANGE COMMISSION THEREUNDER, AS THE SAME ARE FROM TIME TO TIME
IN EFFECT.
(D)
EACH PLEDGOR FURTHER AGREES THAT A BREACH OF
ANY OF THE COVENANTS CONTAINED IN THIS SECTION 9.4 WILL CAUSE IRREPARABLE INJURY
TO THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES, THAT THE COLLATERAL AGENT
AND THE OTHER SECURED PARTIES HAVE NO ADEQUATE REMEDY AT LAW IN RESPECT OF SUCH
BREACH AND, AS A CONSEQUENCE, THAT EACH AND EVERY COVENANT CONTAINED IN THIS
SECTION 9.4 SHALL BE SPECIFICALLY ENFORCEABLE AGAINST SUCH PLEDGOR, AND SUCH
PLEDGOR HEREBY WAIVES AND AGREES NOT TO ASSERT ANY DEFENSES AGAINST AN ACTION
FOR SPECIFIC PERFORMANCE OF SUCH COVENANTS EXCEPT FOR A DEFENSE THAT NO EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING.
23
SECTION 9.5.
NO WAIVER; CUMULATIVE
REMEDIES.
(A)
NO FAILURE ON THE PART OF THE COLLATERAL
AGENT TO EXERCISE, NO COURSE OF DEALING WITH RESPECT TO, AND NO DELAY ON THE
PART OF THE COLLATERAL AGENT IN EXERCISING, ANY RIGHT, POWER OR REMEDY HEREUNDER
SHALL OPERATE AS A WAIVER THEREOF; NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF
ANY SUCH RIGHT, POWER, PRIVILEGE OR REMEDY HEREUNDER PRECLUDE ANY OTHER OR
FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER, PRIVILEGE OR
REMEDY; NOR SHALL THE COLLATERAL AGENT BE REQUIRED TO LOOK FIRST TO, ENFORCE OR
EXHAUST ANY OTHER SECURITY, COLLATERAL OR GUARANTIES.
ALL RIGHTS AND REMEDIES
HEREIN PROVIDED ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY RIGHTS OR