action in any circumstances without
demand or notice.
The Secured Creditors agree that this Agreement may be
enforced only by the action of the Administrative Agent or the Pledgee, in each
case acting upon the instructions of the Required Lenders and that no other
Secured Creditor shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security to be granted hereby, it
being understood and agreed that such rights and remedies may be exercised by
the Administrative Agent or the Pledgee for the benefit of the Secured Creditors
upon the terms of this Agreement.
Exercise by the Collateral Agent of the
powers granted under this Agreement is not a violation of the automatic stay
provided by Section 362 of the Bankruptcy Code and each Pledgor waives
applicability thereof.
The Secured Creditors shall be entitled to all of the
rights and benefits of section 552(b) of the Bankruptcy Code, and the "equities
of the case" exception under section 552(b) of the Bankruptcy Code shall not
apply to the Secured Creditors with respect to proceeds, product, offspring or
profits of any of the Collateral.
9.
APPLICATION OF PROCEEDS.
(a) All
moneys collected by the Pledgee or the Collateral Agent upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Pledgee or the Collateral Agent hereunder, shall be applied as follows:
(I)
FIRST, TO THE PAYMENT OF ALL OBLIGATIONS
OWING TO THE PLEDGEE OR THE COLLATERAL AGENT OF THE TYPE DESCRIBED IN CLAUSES
(II) AND (III) OF THE DEFINITION OF "OBLIGATIONS" CONTAINED IN SECTION 1 HEREOF;
(II)
SECOND, TO THE EXTENT PROCEEDS REMAIN
AFTER THE APPLICATION PURSUANT TO PRECEDING CLAUSE (I), AN AMOUNT EQUAL TO THE
OUTSTANDING OBLIGATIONS TO THE SECURED CREDITORS SHALL BE PAID TO THE SECURED
CREDITORS AS PROVIDED IN SECTION 9(C), WITH EACH SECURED CREDITOR RECEIVING AN
AMOUNT EQUAL TO ITS OUTSTANDING OBLIGATIONS OR, IF THE PROCEEDS ARE INSUFFICIENT
TO PAY IN FULL ALL SUCH OBLIGATIONS, ITS PRO RATA, SHARE OF THE AMOUNT REMAINING
TO BE DISTRIBUTED TO BE APPLIED, WITH RESPECT TO THE OBLIGATIONS, FIRSTLY, TO
THE PAYMENT OF INTEREST IN RESPECT OF THE UNPAID PRINCIPAL AMOUNT OF LOANS
OUTSTANDING, SECONDLY, TO THE PAYMENT OF PRINCIPAL OF LOANS OUTSTANDING, THEN TO
THE OTHER OBLIGATIONS; AND
(III)
THIRD, TO THE EXTENT PROCEEDS REMAIN AFTER
THE APPLICATION PURSUANT TO THE PRECEDING CLAUSES (I) AND (II) AND FOLLOWING THE
TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 18 HEREOF, TO THE RELEVANT
PLEDGOR OR, TO THE EXTENT DIRECTED BY SUCH PLEDGOR OR A COURT OF COMPETENT
JURISDICTION, TO WHOMEVER MAY BE LAWFULLY ENTITLED TO RECEIVE SUCH SURPLUS.
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(B)
FOR PURPOSES OF THIS AGREEMENT, "PRO RATA
SHARE" SHALL MEAN, WHEN CALCULATING A SECURED CREDITOR'S PORTION OF ANY
DISTRIBUTION OR AMOUNT, THE AMOUNT (EXPRESSED AS A PERCENTAGE) EQUAL TO A
FRACTION THE NUMERATOR OF WHICH IS THE THEN OUTSTANDING AMOUNT OF THE RELEVANT
OBLIGATIONS OWED SUCH SECURED CREDITOR AND THE DENOMINATOR OF WHICH IS THE THEN
OUTSTANDING