not satisfied, because this
Purchase Agreement is terminated pursuant to Section 9 or because of any
failure, refusal or inability on the part of the Company or the Trust to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by reason of a default by the Purchaser, the
Company will reimburse the
16
Purchaser upon demand for all reasonable out-of-pocket expenses (including the
fees and expenses of each of the Purchaser's counsel specified in subparagraphs
(v) and (vi) of the immediately preceding paragraph) that shall have been
incurred by the Purchaser in connection with the proposed purchase and sale of
the Preferred Securities. The Company shall not in any event be liable to the
Purchaser for the loss of anticipated profits from the transactions contemplated
by this Purchase Agreement.
8.
INDEMNIFICATION.
(A)
THE SELLERS AGREE, JOINTLY AND SEVERALLY,
TO INDEMNIFY AND HOLD HARMLESS THE PURCHASER, THE PURCHASER'S AFFILIATES,
TABERNA CAPITAL MANAGEMENT, LLC, TABERNA SECURITIES, LLC, AND THEIR RESPECTIVE
AFFILIATES, AND BEAR, STEARNS SECURITIES CORP. (COLLECTIVELY, THE "INDEMNIFIED
PARTIES") EACH PERSON, IF ANY, WHO CONTROLS ANY OF THE INDEMNIFIED PARTIES
WITHIN THE MEANING OF THE SECURITIES ACT OR THE EXCHANGE ACT, AND THE
INDEMNIFIED PARTIES' RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AND
EACH PERSON, IF ANY, WHO CONTROLS THE INDEMNIFIED PARTIES WITHIN THE MEANING OF
THE SECURITIES ACT, OR THE U.S. SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE
"EXCHANGE ACT") AGAINST ANY LOSSES, CLAIMS, DAMAGES OR LIABILITIES, JOINT OR
SEVERAL, TO WHICH THE INDEMNIFIED PARTIES MAY BECOME SUBJECT, UNDER THE
SECURITIES ACT, THE EXCHANGE ACT OR OTHER FEDERAL OR STATE STATUTORY LAW OR
REGULATION, AT COMMON LAW OR OTHERWISE, INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES
OR LIABILITIES (OR ACTIONS IN RESPECT THEREOF) ARISE OUT OF OR ARE BASED UPON
(I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT
CONTAINED IN ANY INFORMATION OR DOCUMENTS FURNISHED OR MADE AVAILABLE TO THE
PURCHASER BY OR ON BEHALF OF THE COMPANY, (II) THE OMISSION OR ALLEGED OMISSION
TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO
MAKE THE STATEMENTS THEREIN NOT MISLEADING, (III) THE BREACH OR ALLEGED BREACH
OF ANY REPRESENTATION, WARRANTY, OR AGREEMENT OF EITHER SELLER CONTAINED HEREIN,
OR (IV) THE EXECUTION AND DELIVERY BY THE COMPANY AND/OR THE TRUST OF THIS
PURCHASE AGREEMENT OR ANY OF THE OTHER OPERATIVE DOCUMENTS AND/OR THE
CONSUMMATION BY THE COMPANY AND/OR THE TRUST OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY, AND AGREES TO REIMBURSE EACH SUCH INDEMNIFIED PARTY, AS
INCURRED, FOR ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY THEM IN
CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH LOSS, CLAIM, DAMAGE,
LIABILITY OR ACTION. THIS INDEMNITY AGREEMENT WILL BE IN ADDITION TO ANY
LIABILITY WHICH THE COMPANY OR THE TRUST MAY OTHERWISE HAVE.
(B)
THE COMPANY AGREES TO INDEMNIFY THE TRUST AGAINST ALL LOSS,
LIABILITY, CLAIM, DAMAGE AND EXPENSE WHATSOEVER DUE FROM THE TRUST UNDER
PARAGRAPH (A) ABOVE.
(C)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY UNDER