11.7 shall
survive any such termination.
11.17
Pro Rata.
Each Purchaser agrees that, for the benefit
of the other Purchasers, any proceeds received by such Purchaser as a result of
the exercise of rights and remedies under this Agreement will be divided, pro
rata, among all Purchasers including the purchasers of the Fall 2008 Notes in
relation to the aggregate principal amount held by such purchasers.
11.18
Appointment and Authorization of Phoenix Venture Fund
LLC as Agent
(A)
APPOINTMENT.
EACH PURCHASER HEREBY
IRREVOCABLY APPOINTS AND AUTHORIZES THE AGENT TO (I) BE ITS ATTORNEY IN ITS NAME
AND ON ITS BEHALF TO EXERCISE ALL RIGHTS AND POWERS GRANTED TO THE PURCHASERS,
AND/OR THE AGENT, ACTING ON BEHALF OF THE PURCHASERS, UNDER THIS AGREEMENT AND
THE LOAN DOCUMENTS, TOGETHER WITH SUCH POWERS AS ARE REASONABLY INCIDENTAL
THERETO (INCLUDING ENTERING INTO ANY AMENDMENT, WAIVER OR MODIFICATION SUBJECT
TO SECTION 11.18(B)), AND (II) TO HOLD, DISPOSE, OR OTHERWISE DEAL WITH THE
COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) FOR ITS OWN BENEFIT AND THE
PRO RATA BENEFIT OF THE PURCHASERS, SUBJECT TO THE TERMS AND CONDITIONS OF THE
OBLIGATIONS OF THE AGENT AS PROVIDED IN THIS AGREEMENT AND IN THE LOAN
DOCUMENTS.
(B)
EXCEPTIONS TO GENERAL APPOINTMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE AGENT AND THE
BORROWERS SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT AND APPROVAL OF THE
PURCHASERS HOLDING AT LEAST 51% OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES
THEN OUTSTANDING (THE "MAJORITY PURCHASERS"), AMEND, MODIFY, TERMINATE OR OBTAIN
A WAIVER OF ANY PROVISION OF THIS AGREEMENT, OR ANY OTHER LOAN DOCUMENT WHICH
WILL HAVE THE EFFECT OF (I) REDUCING THE PRINCIPAL AMOUNT OF ANY NOTES OR OF ANY
PAYMENT REQUIRED TO BE MADE TO THE HOLDERS THEREOF, OR MODIFYING THE TERMS OF A
PAYMENT OR PREPAYMENT THEREOF OR (II) REDUCING THE RATE OR EXTENDING THE TIME
FOR PAYMENT OF PRINCIPAL OR INTEREST UNDER ANY NOTES OR (III) RELEASING ANY
COLLATERAL.
(C)
NO ACTION.
THE AGENT SHALL BE FULLY
JUSTIFIED IN FAILING OR REFUSING TO TAKE ANY ACTION UNDER THIS AGREEMENT, ANY
OTHER LOAN DOCUMENT OR ANY OTHER RELATED DOCUMENT OR ANY OTHER DOCUMENT OR
INSTRUMENT REFERRED TO OR PROVIDED FOR HEREIN OR THEREIN UNLESS IT SHALL FIRST
RECEIVE SUCH ADVICE OR CONCURRENCE OF THE MAJORITY PURCHASERS AS IT DEEMS
APPROPRIATE, OR IT SHALL FIRST BE INDEMNIFIED TO ITS SATISFACTION BY THE
PURCHASERS AGAINST ANY AND ALL LIABILITY AND EXPENSE WHICH MAY BE INCURRED BY IT
BY REASON OF TAKING OR CONTINUING TO TAKE ANY SUCH ACTION.
THE AGENT SHALL IN
ALL CASES BE FULLY PROTECTED FROM THE PURCHASERS IN ACTING, OR IN REFRAINING
FROM ACTING, UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER RELATED
DOCUMENT OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO OR PROVIDED FOR HEREIN
OR THEREIN IN ACCORDANCE WITH
REQUEST OF THE MAJORITY PURCHASERS, AND SUCH
REQUEST AND ANY ACTION TAKEN OR FAILURE TO ACT PURSUANT THERETO SHALL BE BINDING
UPON ALL THE PURCHASERS AND ALL FUTURE HOLDERS OF THE NOTES.
(D)
NO FIDUCIARY