OF EACH SUCH HOLDER AND ALL RIGHTS AND
REMEDIES WHICH SUCH HOLDERS HAVE BEEN GRANTED AT ANY TIME UNDER ANY OTHER
AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS WHICH SUCH HOLDERS HAVE UNDER ANY
LAW.
ANY PERSON HAVING ANY RIGHTS UNDER ANY PROVISION OF THIS AGREEMENT OR ANY
OTHER TRANSACTION AGREEMENT SHALL BE ENTITLED TO ENFORCE SUCH RIGHTS
SPECIFICALLY, TO RECOVER DAMAGES BY REASON OF ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT AND TO EXERCISE ALL OTHER
RIGHTS GRANTED BY LAW.
THE FOLLOWING INDEMNIFICATION PROVISIONS ARE IN ADDITION
TO, AND NOT IN DEROGATION OF, ANY STATUTORY, EQUITABLE, OR COMMON LAW REMEDY ANY
HOLDER OF NOTES, WARRANTS OR UNDERLYING COMMON STOCK MAY HAVE FOR BREACH OF
REPRESENTATION, WARRANTY OR COVENANT WITH RESPECT TO ANY MEMBER OF THE COMPANY
GROUP, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR BY THE OTHER
TRANSACTION AGREEMENTS.
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT SHALL SURVIVE THE CLOSING.
(II)
IN CONSIDERATION OF EACH PURCHASER'S EXECUTION AND DELIVERY OF
THIS AGREEMENT AND ACQUIRING THE NOTES HEREUNDER AND IN ADDITION TO ALL OF THE
COMPANY'S OTHER OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS, THE COMPANY AGREES TO INDEMNIFY ON AN AFTER-TAX BASIS AND DEFEND,
PROTECT AND HOLD HARMLESS EACH PURCHASER AND ITS AFFILIATES AND EACH OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, COUNSEL AND ATTORNEYS-IN-FACT
(INCLUDING THOSE RETAINED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT), SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "INDEMNITEES") FROM
AND AGAINST ANY AND ALL ACTUAL CLAIMS, COSTS, DAMAGES, DEFICIENCIES, EXPENSES
(INCLUDING INTEREST, COURT COSTS, FEES OF ATTORNEYS, ACCOUNTANTS AND OTHER
EXPERTS OR OTHER EXPENSES OF LITIGATION OR OTHER PROCEEDINGS OR OF ANY CLAIM,
DEFAULT OR ASSESSMENT), FEES, FINES, LIABILITIES, LOSSES AND PENALTIES
(HEREINAFTER INDIVIDUALLY, A "LOSS" AND COLLECTIVELY, "LOSSES") WHICH, DIRECTLY
OR INDIRECTLY, ARISE OUT OF, RESULT FROM OR RELATE TO (IRRESPECTIVE OF WHETHER
ANY SUCH INDEMNITEE IS A PARTY TO THE ACTION FOR WHICH INDEMNIFICATION HEREUNDER
IS SOUGHT) THE EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE AND ADMINISTRATION
OF THIS AGREEMENT AND ANY OTHER TRANSACTION AGREEMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY (INCLUDING, WITHOUT LIMITATION, SO-CALLED
WORK-OUTS AND/OR RESTRUCTURINGS AND ALL AMENDMENTS, WAIVERS AND CONSENTS
HEREUNDER OR THEREUNDER, WHETHER OR NOT EFFECTED), AND WITH RESPECT TO ANY
INVESTIGATION, LITIGATION OR PROCEEDING (INCLUDING ANY INSOLVENCY PROCEEDING OR
APPELLATE PROCEEDING) RELATED TO THIS AGREEMENT OR THE NOTES OR TRANSACTIONS
CONTEMPLATED HEREBY OR THE USE OF THE PROCEEDS THEREOF, WHETHER OR NOT ANY
INDEMNITEE IS A PARTY THERETO; PROVIDED, THAT THE COMPANY SHALL HAVE NO
OBLIGATION HEREUNDER TO ANY INDEMNITEE WITH RESPECT TO LOSSES TO THE EXTENT
ARISING FROM THE BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNITEE (OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, COUNSEL, AGENTS OR
ATTORNEYS-IN-FACT) AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL
ORDER NOT SUBJECT TO FURTHER APPEAL.
40
10C.
Purchaser's Representations; Legends.
(I)
PURCHASER'S REPRESENTATIONS.
(A)
AUTHORIZATION.
EACH PURCHASER HEREBY REPRESENTS THAT IT HAS FULL
POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND