CHALLENGE OR QUESTION IN ANY PROCEEDING THE PRIORITY OR VALIDITY OF THE LIENS
GRANTED TO ADMINISTRATIVE AGENT, "LENDERS" (AS DEFINED IN THE TERM CREDIT
AGREEMENT), TERM ADMINISTRATIVE AGENT, COLLATERAL AGENT OR THE TERM COLLATERAL
AGENT TO SECURE THE TERM LOAN OBLIGATIONS (AS DEFINED IN THE TERM CREDIT
AGREEMENT).
(E)
REFINANCING.
NOTWITHSTANDING THE SECOND PRIORITY LIENS GRANTED TO
THE COLLATERAL AGENT FOR THE BENEFIT OF THE LENDERS, THE PARTIES HERETO AGREE
THAT, FOR PURPOSES OF THE SENIOR SECURED NOTES INDENTURE, THIS AGREEMENT
CONSTITUTES A REFINANCING AND REPLACEMENT OF THE FIRST PRIORITY CREDIT FACILITY
AND THE INDEBTEDNESS INCURRED PURSUANT TO THIS AGREEMENT SHALL CONTINUE TO
CONSTITUTE FIRST PRIORITY CREDIT FACILITY INDEBTEDNESS AND FIRST PRIORITY SENIOR
SECURED INDEBTEDNESS; THAT ADMINISTRATIVE AGENT AND COLLATERAL AGENT HAVE BEEN
APPOINTED TO SUCH ROLES AS SUCCESSORS TO THE BANK AGENT AND FIRST PRIORITY
COLLATERAL AGENT, RESPECTIVELY; THAT ADMINISTRATIVE AGENT, AS BANK AGENT, SHALL
CONTINUE TO BE THE FIRST PRIORITY REPRESENTATIVE; THAT THE SECURITY AGREEMENT
CONSTITUTES A REPLACEMENT OF THE EXISTING FIRST PRIORITY SECURITY AGREEMENT AND
THEREFORE IS THE NEW FIRST PRIORITY SECURITY AGREEMENT; AND THAT THE SECURED
PARTIES CONSTITUTE FIRST PRIORITY SENIOR SECURED PARTIES.
CAPITALIZED TERMS
USED IN THIS SECTION 13.18(E) BUT NOT DEFINED IN THIS AGREEMENT SHALL HAVE THE
MEANINGS ASSIGNED TO SUCH TERMS IN THE SENIOR SECURED NOTES INDENTURE.
13.19
JOINT AND SEVERAL LIABILITY OF BORROWERS.
(A)
EACH OF THE BORROWERS SHALL BE JOINTLY AND SEVERALLY LIABLE
HEREUNDER AND UNDER EACH OF THE OTHER LOAN DOCUMENTS WITH RESPECT TO ALL
OBLIGATIONS, REGARDLESS OF WHICH OF THE BORROWERS ACTUALLY RECEIVES THE PROCEEDS
OF THE LOANS OR THE BENEFIT OF ANY OTHER EXTENSIONS OF CREDIT HEREUNDER, OR THE
MANNER IN WHICH THE FUNDS ADMINISTRATOR, THE BORROWERS, THE ADMINISTRATIVE
AGENT, THE LENDERS OR ANY OF THE FACING BANKS ACCOUNT THEREFORE IN THEIR
RESPECTIVE BOOKS AND RECORDS.
IN FURTHERANCE AND NOT IN LIMITATION OF THE
FOREGOING, (I) EACH BORROWER'S OBLIGATIONS AND LIABILITIES WITH RESPECT TO
PROCEEDS OF LOANS WHICH IT RECEIVES OR
138
LETTERS OF CREDIT ISSUED FOR ITS ACCOUNT, AND RELATED FEES, COSTS AND EXPENSES,
AND (II) EACH BORROWER'S OBLIGATIONS AND LIABILITIES ARISING AS A RESULT OF THE
JOINT AND SEVERAL LIABILITY OF THE BORROWERS HEREUNDER WITH RESPECT TO PROCEEDS
OF LOANS RECEIVED BY, OR LETTERS OF CREDIT ISSUED FOR THE ACCOUNT OF, ANY OF THE
OTHER BORROWERS, TOGETHER WITH THE RELATED FEES, COSTS AND EXPENSES, SHALL BE
SEPARATE AND DISTINCT OBLIGATIONS, BOTH OF WHICH ARE PRIMARY OBLIGATIONS OF SUCH
BORROWER.
NEITHER THE JOINT AND SEVERAL LIABILITY OF, NOR THE LIENS GRANTED TO
THE COLLATERAL AGENT UNDER THE SECURITY DOCUMENTS BY, ANY OF THE BORROWERS SHALL
BE IMPAIRED OR RELEASED BY (A) THE FAILURE OF THE ADMINISTRATIVE AGENT, ANY
LENDER OR ANY FACING BANK, ANY SUCCESSORS OR ASSIGNS THEREOF, OR ANY HOLDER OF
ANY NOTE OR ANY OF THE OBLIGATIONS TO ASSERT ANY CLAIM OR DEMAND OR TO EXERCISE
OR ENFORCE ANY RIGHT, POWER OR REMEDY AGAINST THE FUNDS ADMINISTRATOR, ANY
BORROWER, ANY SUBSIDIARY OF ANY BORROWER, ANY OTHER PERSON, THE COLLATERAL OR
OTHERWISE; (B) ANY EXTENSION