ATTN: DIANE SCOTT, OR
SUCH OTHER ACCOUNT(S) AS THE AGENT MAY INSTRUCT BY WRITTEN NOTICE DELIVERED IN
ACCORDANCE WITH SECTION 14 HEREOF.
SECTION 11.
INDEMNITY AND EXPENSES.
(A)
THE PLEDGOR AGREES TO INDEMNIFY, DEFEND AND SAVE AND HOLD HARMLESS
EACH SECURED PARTY, EACH OF THEIR RESPECTIVE AFFILIATES AND THE RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ADVISORS OF THE FOREGOING (EACH, AN
"INDEMNIFIED PARTY") FROM AND AGAINST, AND SHALL PAY ON DEMAND, ANY AND ALL
CLAIMS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE FEES AND EXPENSES OF COUNSEL) THAT MAY BE INCURRED BY OR
ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF
OR IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, ENFORCEMENT OF THIS AGREEMENT), EXCEPT TO THE EXTENT SUCH CLAIM,
DAMAGE, LOSS, LIABILITY OR EXPENSE IS FOUND IN A FINAL, NON APPEALABLE JUDGMENT
BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(B)
THE PLEDGOR WILL PAY TO THE AGENT UPON DEMAND THE AMOUNT OF ANY AND
ALL REASONABLE EXPENSES, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
EXPENSES OF ITS COUNSEL AND OF ANY EXPERTS AND AGENTS, THAT THE AGENT MAY INCUR
IN CONNECTION WITH (I) THE ADMINISTRATION OF THIS AGREEMENT, (II) THE CUSTODY,
PRESERVATION, USE OR OPERATION OF, OR THE SALE OF, COLLECTION FROM OR OTHER
REALIZATION UPON, ANY OF THE COLLATERAL, (III) THE EXERCISE OR ENFORCEMENT OF
ANY OF THE RIGHTS OF THE AGENT AND/OR THE OTHER SECURED PARTIES HEREUNDER OR
(IV) THE FAILURE BY THE PLEDGOR TO PERFORM OR OBSERVE ANY PROVISION HEREOF.
(C)
THE PLEDGOR HEREBY AUTHORIZES THE SECURED PARTIES, IF AND TO THE
EXTENT ANY AMOUNT PAYABLE BY THE PLEDGOR UNDER THE BRIDGE LOAN AGREEMENT IS NOT
OTHERWISE PAID WHEN DUE, TO CHARGE SUCH AMOUNT AGAINST ANY OR ALL OF THE BANK
ACCOUNTS OF THE PLEDGOR WITH THE SECURED PARTIES OR ANY OF ITS AFFILIATES, WITH
THE PLEDGOR REMAINING LIABLE FOR ANY DEFICIENCY.
(D)
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE AGENT MAY EXERCISE ITS
RIGHTS AND REMEDIES UNDER THE SECURITY DOCUMENTS (I) WITHOUT RESISTANCE OR
INTERFERENCE BY THE PLEDGOR, (II) WITHOUT PAYMENT OF ANY KIND TO THE PLEDGOR AND
(III) FOR THE ACCOUNT, AND AT THE EXPENSE, OF THE PLEDGOR.
8
(E)
THE PLEDGOR WAIVES (I) THE RIGHT TO ASSERT IN ANY ACTION OR
PROCEEDING BETWEEN IT AND THE SECURED PARTIES ANY OFFSETS OR COUNTERCLAIMS THAT
IT MAY HAVE, AND (II) ALL RIGHTS TO THE MARSHALLING OF ASSETS.
SECTION 12.
AMENDMENTS; WAIVERS; ETC.
NONE OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT MAY BE CHANGED, WAIVED, MODIFIED OR VARIED IN ANY MANNER WHATSOEVER
UNLESS IN WRITING DULY SIGNED BY THE PLEDGOR AND THE AGENT (OR, TO THE EXTENT
REQUIRED BY THE BRIDGE LOAN AGREEMENT, THE REQUIRED NUMBER OR PERCENTAGE OF THE
BRIDGE LENDERS, AS APPLICABLE).
UNLESS OTHERWISE SPECIFIED IN SUCH WAIVER, A
WAIVER OF ANY RIGHT UNDER THIS AGREEMENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC
INSTANCE AND FOR THE SPECIFIC PURPOSE FOR WHICH GIVEN.