OF ANY KIND, ALL OF WHICH ARE HEREBY WAIVED BY
THE BORROWER;
(C)
TERMINATE ANY LETTER OF CREDIT THAT MAY BE TERMINATED IN
ACCORDANCE WITH ITS TERMS; AND/OR
(D)
EXERCISE ANY OTHER RIGHT OR REMEDY AVAILABLE UNDER ANY OF THE
CREDIT DOCUMENTS OR APPLICABLE LAW; PROVIDED THAT, IF AN EVENT OF DEFAULT
SPECIFIED IN SECTION 9.1(H) (OTHER THAN SECTION 9.1(H)(X)) SHALL OCCUR, THE
RESULT THAT WOULD OCCUR UPON THE GIVING OF WRITTEN NOTICE BY THE ADMINISTRATIVE
AGENT AS SPECIFIED IN CLAUSES (A) AND/OR (B) ABOVE SHALL OCCUR AUTOMATICALLY
WITHOUT THE GIVING OF ANY SUCH NOTICE.
SECTION 9.3
APPLICATION OF LIQUIDATION PROCEEDS.
ALL MONIES
RECEIVED BY THE ADMINISTRATIVE AGENT OR ANY LENDER FROM THE EXERCISE OF REMEDIES
HEREUNDER OR UNDER THE OTHER CREDIT DOCUMENTS OR UNDER ANY OTHER DOCUMENTS
RELATING TO THIS AGREEMENT SHALL, UNLESS OTHERWISE REQUIRED BY THE TERMS OF THE
OTHER CREDIT DOCUMENTS OR BY APPLICABLE LAW, BE APPLIED AS FOLLOWS:
(A)
FIRST, TO THE PAYMENT OF ALL EXPENSES (TO THE EXTENT NOT OTHERWISE
PAID BY THE BORROWER) INCURRED BY THE ADMINISTRATIVE AGENT AND THE LENDERS IN
CONNECTION WITH THE EXERCISE OF SUCH REMEDIES, INCLUDING, WITHOUT LIMITATION,
ALL REASONABLE COSTS AND EXPENSES OF COLLECTION, REASONABLE DOCUMENTED
ATTORNEYS' FEES, COURT COSTS AND ANY FORECLOSURE EXPENSES;
(B)
SECOND, TO THE PAYMENT PRO RATA OF INTEREST THEN ACCRUED ON THE
OUTSTANDING LOANS AND UNPAID DRAWINGS;
(C)
THIRD, TO THE PAYMENT PRO RATA OF ANY FEES THEN ACCRUED AND
PAYABLE TO THE ADMINISTRATIVE AGENT OR ANY LENDER UNDER THIS AGREEMENT IN
RESPECT OF THE LOANS AND/OR LETTERS OF CREDIT;
(D)
FOURTH, TO THE PAYMENT PRO RATA OF THE PRINCIPAL BALANCE THEN
OWING ON THE OUTSTANDING LOANS AND UNPAID DRAWINGS;
(E)
FIFTH, TO THE PAYMENT TO THE LENDERS OF ANY AMOUNTS THEN ACCRUED
AND UNPAID UNDER SECTIONS 2.6, 2.7, AND 4.5, AND IF SUCH PROCEEDS ARE
INSUFFICIENT TO PAY SUCH AMOUNTS IN FULL, TO THE PAYMENT OF SUCH AMOUNTS PRO
RATA;
(F)
SIXTH, TO THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF EACH LC
ISSUER TO CASH COLLATERALIZE THE STATED AMOUNT OF OUTSTANDING LETTERS OF CREDIT;
(G)
SEVENTH, TO THE PAYMENT PRO RATA OF ALL OTHER AMOUNTS OWED BY THE
BORROWER TO THE ADMINISTRATIVE AGENT OR ANY LENDER OR LC ISSUER UNDER THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT; AND
67
(H)
FINALLY, ANY REMAINING SURPLUS AFTER ALL OF THE OBLIGATIONS HAVE
BEEN PAID IN FULL, TO THE BORROWER OR TO WHOMSOEVER SHALL BE LAWFULLY ENTITLED
THERETO.
ARTICLE X.
THE ADMINISTRATIVE AGENT
SECTION 10.1
APPOINTMENT.
EACH LENDER HEREBY IRREVOCABLY DESIGNATES
AND APPOINTS KEYBANK AS ADMINISTRATIVE AGENT TO ACT AS SPECIFIED HEREIN AND IN
THE OTHER CREDIT DOCUMENTS, AND EACH SUCH LENDER HEREBY IRREVOCABLY AUTHORIZES
KEYBANK AS THE ADMINISTRATIVE AGENT FOR SUCH LENDER, TO TAKE SUCH ACTION ON ITS
BEHALF UNDER THE PROVISIONS OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
TO EXERCISE SUCH POWERS AND PERFORM SUCH DUTIES AS ARE EXPRESSLY DELEGATED TO
THE ADMINISTRATIVE AGENT BY THE TERMS OF THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS, TOGETHER WITH SUCH OTHER POWERS AS