BY SECURED PARTY (OTHER THAN AMOUNTS FOR PRINCIPAL AND INTEREST UNDER
THE NOTES) PURSUANT TO THE PROVISIONS OF THIS AGREEMENT OR THE OTHER OBLIGATION
DOCUMENTS, AND OF ANY EXPENSES OF SECURED PARTY PAYABLE BY DEBTOR HEREUNDER OR
UNDER THE OTHER OBLIGATION DOCUMENTS;
(D)
TO THE SATISFACTION OF ANY OTHER SECURED
OBLIGATIONS TO EACH LENDER AND PRUDENTIAL IN ACCORDANCE WITH ITS PROPORTIONATE
SHARE (AS DEFINED IN THE INTERCREDITOR AGREEMENT);
(E)
BY HOLDING THE SAME AS COLLATERAL;
(F)
TO THE PAYMENT OF ANY OTHER AMOUNTS
REQUIRED BY APPLICABLE LAW (INCLUDING ANY PROVISION OF THE UCC); AND
(G)
BY DELIVERY TO DEBTOR OR TO WHOMEVER SHALL
BE LAWFULLY ENTITLED TO RECEIVE THE SAME OR AS A COURT OF COMPETENT JURISDICTION
SHALL DIRECT.
Each Lender hereby authorizes the Secured Party to remit to Prudential any cash
held as Collateral or cash proceeds at any time due to Prudential pursuant to
clause (d) above and the terms of the Intercreditor Agreement.
SECTION 4.4.
DEFICIENCY.
IN THE EVENT THAT
THE PROCEEDS OF ANY SALE, COLLECTION OR REALIZATION OF OR UPON COLLATERAL BY
SECURED PARTY ARE INSUFFICIENT TO PAY ALL SECURED OBLIGATIONS AND ANY OTHER
AMOUNTS TO WHICH SECURED PARTY AND LENDERS ARE LEGALLY ENTITLED, DEBTOR SHALL BE
LIABLE FOR THE DEFICIENCY, TOGETHER WITH INTEREST THEREON AS PROVIDED IN THE
GOVERNING OBLIGATION DOCUMENTS OR (IF NO INTEREST IS SO PROVIDED) AT 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 SECURED PARTY TO COLLECT
SUCH DEFICIENCY.
SECTION 4.5.
INDEMNITY AND EXPENSES.
IN
ADDITION TO, BUT NOT IN QUALIFICATION OR LIMITATION OF, ANY SIMILAR OBLIGATIONS
UNDER OTHER OBLIGATION DOCUMENTS:
(A)
DEBTOR WILL INDEMNIFY SECURED PARTY AND
EACH LENDER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES AND LIABILITIES GROWING
OUT OF OR RESULTING FROM THIS AGREEMENT (INCLUDING ENFORCEMENT OF THIS
AGREEMENT), WHETHER OR NOT SUCH CLAIMS, LOSSES AND
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LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE IN OR PART, UNDER ANY
CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED BY OR ARISE OUT OF SUCH
INDEMNIFIED PARTY'S OWN NEGLIGENCE, EXCEPT TO THE EXTENT SUCH CLAIMS, LOSSES OR
LIABILITIES ARE PROXIMATELY CAUSED BY THE INDEMNIFIED PARTY'S INDIVIDUAL GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
AS USED IN THIS SECTION 4.5, THE TERMS
"SECURED PARTY" AND "LENDER" SHALL INCLUDE EACH DIRECTOR, OFFICER, AGENT,
ATTORNEY, EMPLOYEE, REPRESENTATIVE AND AFFILIATE OF SUCH PERSON.
(B)
DEBTOR WILL UPON DEMAND PAY TO SECURED PARTY
THE AMOUNT OF ANY AND ALL REASONABLE COSTS AND EXPENSES, INCLUDING THE
REASONABLE FEES AND DISBURSEMENTS OF SECURED PARTY'S COUNSEL AND OF ANY EXPERTS
AND AGENTS, WHICH SECURED PARTY MAY INCUR IN CONNECTION WITH (I) THE
TRANSACTIONS WHICH GIVE RISE TO THIS AGREEMENT, (II) THE PREPARATION OF THIS
AGREEMENT AND THE PERFECTION AND PRESERVATION OF THIS SECURITY INTEREST CREATED
UNDER THIS AGREEMENT, (III) THE ADMINISTRATION OF THIS AGREEMENT; (IV) THE
CUSTODY, PRESERVATION, USE OR OPERATION OF, OR THE SALE OF, COLLECTION FROM, OR
OTHER REALIZATION UPON, ANY COLLATERAL; (V)