PARTY SHALL BE DEEMED TO HOLD ALL OF SUCH PROCEEDS IN
TRUST FOR THE BENEFIT OF SENIOR CREDITOR UNTIL ALL SECURED OBLIGATIONS TO THE
SENIOR CREDITOR ARE PAID IN FULL. A SECURED PARTY SHALL NOT, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE APPLICABLE SENIOR CREDITOR, BE PERMITTED TO ENFORCE ANY
RIGHTS OR EXERCISE ANY REMEDIES WITH RESPECT TO THE COLLATERAL IN WHICH A SENIOR
CREDITOR HAS A SECURITY INTEREST OR LIEN (INCLUDING, WITHOUT LIMITATION, THE
RIGHT TO TAKE ANY ACTION TO FORECLOSE, REPOSSESS, MARSHALL, CONTROL OR EXERCISE
ANY REMEDIES WITH RESPECT TO THE COLLATERAL), SO LONG AS ANY OBLIGATION TO A
SENIOR CREDITOR SECURED BY SUCH COLLATERAL SHALL CONTINUE TO EXIST.
UPON THE
REQUEST OF A HOLDER OR PROSPECTIVE HOLDER OF SENIOR INDEBTEDNESS, EACH SECURED
PARTY WILL EXECUTE ANY REASONABLE WRITTEN AFFIRMATION, IN FAVOR OF SUCH HOLDER
OR PROSPECTIVE HOLDER, OF THE PROVISIONS OF THIS PARAGRAPH AND/OR THE PROVISIONS
OF SECTION 13 OF THE NOTES.
IN ADDITION, EACH SECURED PARTY HEREBY AGREES TO
COMPLY WITH THE PROVISIONS OF SECTION 13 OF THE NOTES, INCLUDING WITHOUT
LIMITATION PARAGRAPHS (B) AND (C) THEREOF.
9.
COLLATERAL AGENT.
PURSUANT TO A COLLATERAL AGENT AGREEMENT OF
EVEN DATE HEREWITH AMONG THE INVESTORS, AGENT, AND BORROWER, THE INVESTORS HAVE
DESIGNATED AGENT AS THEIR ADMINISTRATIVE AGENT WITH RESPECT TO THE COLLATERAL
UPON THE TERMS AND CONDITIONS SET FORTH IN SAID AGREEMENT.
10.
APPLICATION OF PROCEEDS.
THE PROCEEDS OF ANY COLLECTION OR SALE
OF COLLATERAL, AS WELL AS ANY COLLATERAL CONSISTING OF CASH, SHALL BE APPLIED BY
THE AGENT AS FOLLOWS:
FIRST, to the payment of all reasonable costs and expenses incurred by the Agent
in connection with such collection or sale or otherwise in connection with this
Agreement or any of the Obligations, including, but not limited to, all court
costs and the reasonable fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Agent hereunder on behalf of the Borrower
and any other reasonable costs or expenses incurred in connection with the
exercise of any right or remedy hereunder;
8
SECOND, pro rata to the payment in full of accrued interest, and then
outstanding principal in respect of any amount of the Notes outstanding (pro
rata as among the Investors in accordance with the principal amount of the Notes
held by them);
THIRD, to the Borrower, its successors and assigns, or as a court of competent
jurisdiction may otherwise direct.
11.
SECURITY INTEREST ABSOLUTE. ALL RIGHTS OF THE AGENT HEREUNDER, THE
SECURITY INTEREST, AND ALL OBLIGATIONS OF THE BORROWER HEREUNDER, SHALL BE
ABSOLUTE AND UNCONDITIONAL IRRESPECTIVE OF (I) ANY PARTIAL INVALIDITY OR
UNENFORCEABILITY OF THE NOTES, ANY OTHER AGREEMENT WITH RESPECT TO ANY OF THE
OBLIGATIONS OR ANY OTHER AGREEMENT OR INSTRUMENT RELATING TO ANY OF THE
FOREGOING, (II) ANY CHANGE IN THE TIME, MANNER OR PLACE OF PAYMENT OF, OR IN ANY
OTHER TERM OF, ALL OR ANY OF THE OBLIGATIONS, OR ANY OTHER AMENDMENT OR WAIVER
OF OR CONSENT TO ANY DEPARTURE FROM THE NOTES OR