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
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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 MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
(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 THIS SECTION
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