THE DEFICIENCY, TOGETHER
WITH INTEREST THEREON AT THE HIGHEST RATE SPECIFIED IN SUCH PLEDGEE'S NOTE FOR
INTEREST ON OVERDUE PRINCIPAL THEREOF OR SUCH OTHER RATE AS SHALL BE FIXED BY
APPLICABLE LAW, TOGETHER WITH THE COSTS OF COLLECTION AND THE REASONABLE FEES OF
ANY ATTORNEYS EMPLOYED BY SUCH PLEDGEE TO COLLECT SUCH DEFICIENCY.
SECTION 10.
INDEMNITY AND EXPENSES.
(A)
THE PLEDGOR AGREES TO INDEMNIFY AND HOLD HARMLESS EACH PLEDGEE AND
ALL OF THEIR RESPECTIVE STOCKHOLDERS, PARTNERS, MEMBERS, OFFICERS, DIRECTORS,
EMPLOYEES AND DIRECT OR INDIRECT INVESTORS AND ANY OF THE FOREGOING PERSONS'
AGENTS OR OTHER REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, THOSE RETAINED
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT) FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, OBLIGATIONS,
PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEY'S
FEES AND DISBURSEMENTS) TO THE EXTENT THAT THEY ARISE OUT OF OR
OTHERWISE RESULT FROM THIS AGREEMENT
10
(INCLUDING, WITHOUT LIMITATION, ENFORCEMENT OF THIS AGREEMENT), EXCEPT, AS TO
ANY SUCH INDEMNIFIED PERSON, CLAIMS, LOSSES OR LIABILITIES RESULTING SOLELY AND
DIRECTLY FROM SUCH PERSON'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND EXCEPT
TO THE EXTENT THAT SUCH CLAIMS, LOSSES OR LIABILITIES RESULT FROM FAILURE OF
SUCH INDEMNIFIED PERSONS TO COMPLY WITH APPLICABLE SECURITIES LAWS, IN EACH CASE
AS DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION.
(B)
THE PLEDGOR WILL PAY TO THE CUSTODIAN, THE CASH COLLATERAL
CUSTODIAN AND EACH PLEDGEE UPON DEMAND THE AMOUNT OF ANY AND ALL COSTS AND
EXPENSES, INCLUDING THE FEES AND DISBURSEMENTS OF THE CUSTODIAN, THE CASH
COLLATERAL CUSTODIAN AND SUCH PLEDGEE'S COUNSEL AND OF ANY EXPERTS AND AGENTS,
WHICH THE CUSTODIAN, THE CASH COLLATERAL CUSTODIAN OR SUCH PLEDGEE MAY INCUR IN
CONNECTION WITH (I) THE PREPARATION, NEGOTIATION, EXECUTION, DELIVERY,
RECORDATION, ADMINISTRATION, AMENDMENT, WAIVER OR OTHER MODIFICATION OR
TERMINATION OF THIS AGREEMENT, (II) THE CUSTODY, PRESERVATION, USE OR OPERATION
OF, OR THE SALE OF, COLLECTION FROM, OR OTHER REALIZATION UPON, ANY OF THE
PLEDGED COLLATERAL, (III) THE EXERCISE OR ENFORCEMENT OF ANY OF THE RIGHTS OF
THE CUSTODIAN, THE CASH COLLATERAL CUSTODIAN OR SUCH PLEDGEE HEREUNDER OR (IV)
THE FAILURE BY THE PLEDGOR TO PERFORM OR OBSERVE ANY OF THE PROVISIONS HEREOF.
SECTION 11.
NOTICES.
WHENEVER NOTICE IS REQUIRED TO BE GIVEN UNDER THIS
AGREEMENT, UNLESS OTHERWISE PROVIDED HEREIN, SUCH NOTICE SHALL BE GIVEN IN
ACCORDANCE WITH SECTION 9(F) OF THE SECURITIES PURCHASE AGREEMENT.
SECTION 12.
SECURITY INTEREST ABSOLUTE.
TO THE EXTENT PERMITTED BY LAW,
ALL RIGHTS OF THE CUSTODIAN, THE CASH COLLATERAL CUSTODIAN, THE PLEDGEES AND THE
PLEDGOR HEREUNDER SHALL BE ABSOLUTE AND UNCONDITIONAL IRRESPECTIVE OF: (I) ANY
LACK OF VALIDITY OR ENFORCEABILITY OF ANY TRANSACTION DOCUMENT OR ANY OTHER
AGREEMENT OR INSTRUMENT RELATING THERETO, (II) ANY CHANGE IN THE TIME, MANNER OR
PLACE OF PAYMENT OF, OR IN ANY OTHER TERM IN RESPECT OF, ALL OR ANY OF THE
OBLIGATIONS, OR ANY OTHER AMENDMENT OR WAIVER OF OR CONSENT TO ANY DEPARTURE
FROM ANY GUARANTY, FOR ALL OR ANY OF THE OBLIGATIONS, OR (III) ANY OTHER
CIRCUMSTANCE WHICH MIGHT OTHERWISE CONSTITUTE A