OR THE POSSESSION THEREOF
BY ANY PURCHASER AT ANY SALE THEREOF, AND WAIVES THE BENEFIT OF ALL SUCH LAWS
AND FURTHER AGREES THAT IT WILL NOT HINDER, DELAY OR IMPEDE THE EXECUTION OF ANY
POWER GRANTED HEREUNDER TO THE SECURED PARTY, BUT THAT IT WILL PERMIT THE
EXECUTION OF EVERY SUCH POWER AS THOUGH NO SUCH LAWS WERE IN EFFECT, (II) WAIVES
ALL RIGHTS THAT IT HAS OR MAY HAVE UNDER ANY RULE OF LAW OR STATUTE NOW EXISTING
OR HEREAFTER ADOPTED TO REQUIRE THE SECURED PARTY TO MARSHAL ANY COLLATERAL OR
OTHER ASSETS IN FAVOR OF THE DEBTOR OR ANY OTHER PARTY OR AGAINST OR IN PAYMENT
OF ANY OR ALL OF THE OBLIGATIONS, AND (III) WAIVES ALL RIGHTS THAT IT HAS OR MAY
HAVE UNDER ANY RULE OF LAW OR STATUTE NOW EXISTING OR HEREAFTER ADOPTED TO
DEMAND, PRESENTMENT, PROTEST, ADVERTISEMENT OR NOTICE OF ANY KIND (EXCEPT
NOTICES EXPRESSLY PROVIDED FOR HEREIN).
5.7
SUBORDINATION TO SECURITY INTEREST OF
STOCKHOLDERS.
THE SECURITY INTEREST GRANTED TO THE SECURED PARTY PURSUANT TO
THIS AGREEMENT SHALL BE SUBORDINATE TO THE SECURITY INTEREST GRANTED TO THE
STOCKHOLDERS PURSUANT TO THE OPTION SECURITY AGREEMENT.
THE STOCKHOLDERS ARE
INTENDED BENEFICIARIES OF THIS SECTION 5.7.
ARTICLE 6
6.1
INDEMNITY AND EXPENSES.
DEBTOR AGREES:
(A)
TO INDEMNIFY AND HOLD HARMLESS THE SECURED
PARTY AND EACH OF ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, MEMBERS
AND AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, DEMANDS, LOSSES,
OBLIGATIONS, JUDGMENTS AND LIABILITIES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES AND EXPENSES) IN ANY WAY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT
TO THE EXTENT THE SAME SHALL ARISE AS A RESULT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PARTY SEEKING TO BE INDEMNIFIED; AND
(B)
TO PAY AND REIMBURSE SECURED PARTY UPON
DEMAND FOR ALL REASONABLE COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES AND EXPENSES) THAT THE SECURED PARTY MAY INCUR IN
CONNECTION WITH (I) THE CUSTODY, USE OR PRESERVATION OF, OR THE SALE OF,
COLLECTION FROM OR OTHER REALIZATION UPON, ANY OF THE COLLATERAL, INCLUDING THE
REASONABLE EXPENSES OF RE-TAKING, HOLDING, PREPARING FOR SALE OR LEASE, SELLING
OR OTHERWISE DISPOSING OF OR REALIZING ON THE COLLATERAL, (II) THE EXERCISE OR
ENFORCEMENT OF ANY RIGHTS OR REMEDIES GRANTED HEREUNDER (INCLUDING, WITHOUT
LIMITATION, UNDER ARTICLE 5), UNDER THE ROYALTY AGREEMENT OR OTHERWISE AVAILABLE
TO IT (WHETHER AT LAW, IN EQUITY OR OTHERWISE), OR (III) THE FAILURE BY THE
DEBTOR TO PERFORM OR OBSERVE ANY OF THE PROVISIONS HEREOF.
THE PROVISIONS OF
THIS SECTION 6.1 SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
REPAYMENT OF ANY OF THE OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT, THE
13
ROYALTY AGREEMENT OR ANY OTHER INSTRUMENTS OR DOCUMENTS EXECUTED AND DELIVERED
PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT.
6.2
NO WAIVER.
THE SECURED PARTY'S FAILURE AT
ANY TIME OR TIMES HEREAFTER TO REQUIRE STRICT PERFORMANCE BY THE DEBTOR OF ANY
OF THE PROVISIONS OF THIS AGREEMENT OR OF THE ROYALTY