Collection Fees.
Should the indebtedness evidenced by this Note or any part hereof be collected
at law or in equity or in bankruptcy, receivership or other court proceedings,
the Company agrees to pay, in addition to the principal and interest due and
payable hereon, all costs of collection, including reasonable attorneys' fees
and expenses, incurred by the Investor or its agent in collecting or enforcing
this Note.
Section 11.
Indemnification
(A)
THE COMPANY SHALL INDEMNIFY THE INVESTOR,
AND EACH AFFILIATE OF THE INVESTOR (EACH SUCH PERSON BEING CALLED AN
"INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL
LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES INCURRED BY OR ASSERTED
AGAINST ANY INDEMNITEE BY A THIRD PARTY ARISING OUT OF, IN CONNECTION WITH, OR
AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THIS NOTE, THE PERFORMANCE BY
THE COMPANY AND ITS SUBSIDIARIES HERETO OF THEIR RESPECTIVE OBLIGATIONS
HEREUNDER OR THE CONSUMMATION OF OR THE USE OF THE PROCEEDS THEREFROM, OR
(II) THE MATERIAL BREACH BY THE COMPANY OR ANY SUBSIDIARY OF (A) ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT CONTAINED HEREIN OR (B) ANY
REPRESENTATION OR WARRANTY IN SECTION 3.1 OF THE SECURITIES PURCHASE AGREEMENT
AS THEY RELATE TO THE NOTE; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY
INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY
8
FINAL AND NON-APPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH INDEMNITEE.
(B)
THE COMPANY SHALL PAY ALL REASONABLE OUT OF
POCKET COSTS AND EXPENSES INCURRED BY THE INVESTOR, INCLUDING THE REASONABLE
FEES, CHARGES AND DISBURSEMENTS OF COUNSEL FOR THE INVESTOR AND ANY CONSULTANT
OR EXPERT WITNESS FEES AND EXPENSES, IN CONNECTION WITH (I) ANY AMENDMENT,
MODIFICATION OR WAIVER OF ANY PROVISION OF ANY TRANSACTION DOCUMENT (WHETHER OR
NOT THE TRANSACTIONS CONTEMPLATED THEREBY SHALL BE CONSUMMATED) REQUIRED BY THE
COMPANY, AND (II) THE ENFORCEMENT OR PROTECTION OF ITS RIGHTS IN CONNECTION WITH
ANY TRANSACTION DOCUMENT, INCLUDING ITS RIGHTS UNDER THIS SECTION, AND INCLUDING
ALL SUCH REASONABLE OUT OF POCKET COSTS AND EXPENSES INCURRED DURING ANY
WORKOUT, RESTRUCTURING OR NEGOTIATIONS IN RESPECT OF ANY SUCH TRANSACTION
DOCUMENT (PROVIDED THAT REFERENCES TO THE TRANSACTION DOCUMENTS CONTAINED
THEREIN SHALL BE DEEMED TO RELATE ONLY TO THE NOTES AND THE GUARANTY AND
SECURITY AGREEMENT).
(C)
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE COMPANY SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY
INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS
NOTE, THE SECURITIES PURCHASE AGREEMENT, THE SECURITY AGREEMENT OR ANY AGREEMENT
OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, OR THE USE OF THE PROCEEDS
THEREOF.
Section 12.
Waivers.
The Company hereby waives presentment, demand for payment, notice of dishonor,
notice of protest and all other notices or demands in connection with the
delivery, acceptance, performance or default of this Note. No delay by the
Investor