SECTION 7.4
APPLICATION OF PROCEEDS FOLLOWING DEFAULT. NOTWITHSTANDING
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, FOLLOWING THE OCCURRENCE
OF AN EVENT OF DEFAULT AND THE ACCELERATION OF THE OBLIGATIONS PURSUANT TO
SECTION 7.3, ALL PROCEEDS OF COLLATERAL AND OTHER PAYMENTS MADE BY THE BORROWERS
OR ANY GUARANTOR, OR RECEIVED FROM ANY OTHER SOURCE, SHALL BE APPLIED AS
FOLLOWS:
(A)
FIRST TO THE PAYMENT OF ALL FEES AND REASONABLE EXPENSES OF THE
AGENT THEN DUE HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS AND ALLOCATED
TO THE WORKING CAPITAL FACILITY UNTIL PAID IN FULL; (B) SECOND TO THE PAYMENT OF
ALL FEES AND EXPENSES IN RESPECT OF THE WORKING CAPITAL FACILITY THEN DUE TO THE
LENDERS HAVING COMMITMENTS HEREUNDER, PRO RATA BASED ON THE OUTSTANDING
PRINCIPAL BALANCE OF EACH SUCH LENDER'S WORKING CAPITAL FACILITY LOAN UNTIL PAID
IN FULL; (C) THIRD, TO PAY INTEREST DUE IN RESPECT OF THE WORKING CAPITAL
FACILITY LOANS, PRO RATA BASED ON THE OUTSTANDING PRINCIPAL BALANCE OF EACH SUCH
LENDER'S WORKING CAPITAL FACILITY LOAN UNTIL PAID IN FULL; (D) FOURTH, TO REPAY
PRINCIPAL OF THE WORKING CAPITAL FACILITY LOANS, PRO RATA BASED ON THE
OUTSTANDING PRINCIPAL BALANCE OF EACH SUCH LENDER'S WORKING CAPITAL FACILITY
LOAN UNTIL PAID IN FULL; (E) FIFTH, TO BE HELD BY THE AGENT AS CASH COLLATERAL
IN AN AMOUNT UP TO ONE HUNDRED FIVE PERCENT (105%) OF THE THEN OUTSTANDING FACE
AMOUNT OF ALL LETTERS OF CREDIT ISSUED HEREUNDER; (F) SIXTH, TO PAY ALL OTHER
OBLIGATIONS, INCLUDING ALL FEES, EXPENSES AND INTEREST THEREON, IN ACCORDANCE
WITH THE PROVISIONS OF SUBSECTION (II) HEREOF, UNTIL ALL SUCH OBLIGATIONS ARE
PAID IN FULL; AND (II) THEREAFTER, TO THE BORROWERS OR SUCH OTHER PERSON
ENTITLED THERETO UNDER APPLICABLE LAW.
ARTICLE 8
THE AGENT
SECTION 8.1
ACTIONS.
EACH LENDER AND THE HOLDER OF EACH NOTE AUTHORIZE
THE AGENT TO ACT ON BEHALF OF SUCH LENDER OR HOLDER UNDER THIS AGREEMENT AND ANY
OTHER LOAN DOCUMENT AND, IN THE ABSENCE OF OTHER WRITTEN INSTRUCTIONS FROM THE
REQUIRED LENDERS RECEIVED FROM TIME TO TIME BY THE AGENT (WITH RESPECT TO WHICH
THE AGENT AGREES THAT IT WILL, SUBJECT TO THE LAST TWO
63
SENTENCES OF THIS SECTION 8.1, COMPLY), TO EXERCISE SUCH POWERS HEREUNDER AND
THEREUNDER AS ARE SPECIFICALLY DELEGATED TO OR REQUIRED OF THE AGENT BY THE
TERMS HEREOF AND THEREOF, TOGETHER WITH SUCH POWERS AS MAY BE REASONABLY
INCIDENTAL THERETO.
EACH LENDER (INCLUDING, WITHOUT LIMITATION, UPSC IN ITS
CAPACITY AS A LENDER) AGREES (WHICH AGREEMENT SHALL SURVIVE ANY TERMINATION OF
THIS AGREEMENT) TO INDEMNIFY THE AGENT, SEVERALLY BUT NOT JOINTLY, PRO RATA
ACCORDING TO SUCH LENDER'S AGGREGATE PERCENTAGE OF THE COMMITMENTS FROM AND
AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE
NOTES, OR ANY OTHER LOAN DOCUMENT, INCLUDING THE REIMBURSEMENT OF THE