Warrant,
the Borrowers shall issue and deliver to such Purchaser a new Note or Warrant of
like tenor, in lieu of such lost, stolen or mutilated Note or Warrant.
11.16
Termination.
This Agreement may be terminated at any time prior to
the Initial Closing by mutual agreement of the Borrowers and all Initial
Purchasers set forth in writing; provided that Section 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.
11.18
Appointment and Authorization of SG Phoenix LLC as Agent.
(A)
APPOINTMENT.
EACH PURCHASER HEREBY IRREVOCABLY APPOINTS AND AUTHORIZES
THE AGENT TO (I) BE ITS TRUE AND LAWFUL ATTORNEY IN ITS NAME AND ON ITS BEHALF
TO EXECUTE, DELIVER, AMEND, WAIVE, TERMINATE OR OTHERWISE MODIFY ANY LOAN
DOCUMENT, SUBJECT TO SECTION 11.18(B), AND 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.
EACH PURCHASER THAT IS AN INDIVIDUAL AND THAT EXECUTES
THIS AGREEMENT IN THE STATE OF NEW YORK AGREES TO EXECUTE AND DELIVER THE
APPOINTMENT CONTAINED IN EXHIBIT G HERETO.
(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