pursuant to any other Sections of this
Agreement.
Section 9.9
Contributions and Waivers.
(I)
AS A RESULT OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, EACH BORROWER ENTITY WILL BENEFIT, DIRECTLY AND
INDIRECTLY, FROM EACH OTHER BORROWER ENTITY'S OBLIGATION TO PAY THE DEBT AND
PERFORM ITS OBLIGATIONS AND IN CONSIDERATION THEREOF THE BORROWER ENTITIES
DESIRE TO ENTER INTO AN ALLOCATION AND CONTRIBUTION AGREEMENT AMONG THEMSELVES
AS SET FORTH IN THIS SECTION 9.9 TO ALLOCATE SUCH BENEFITS AMONG THEMSELVES AND
TO PROVIDE A FAIR AND EQUITABLE AGREEMENT TO MAKE CONTRIBUTIONS AMONG EACH OF
THE BORROWER ENTITIES IN THE EVENT ANY PAYMENT IS MADE BY ANY INDIVIDUAL
BORROWER ENTITY HEREUNDER TO LENDER (EACH SUCH PAYMENT BEING REFERRED TO HEREIN
AS A "CONTRIBUTION," WHICH TERM SHALL, FOR PURPOSES OF THIS SECTION 9.9, INCLUDE
ANY EXERCISE OF RECOURSE BY LENDER AGAINST ANY COLLATERAL OF A BORROWER ENTITY
AND APPLICATION OF PROCEEDS OF SUCH COLLATERAL IN SATISFACTION OF SUCH BORROWER
ENTITY'S OBLIGATIONS TO LENDER UNDER THE LOAN DOCUMENTS).
(II)
EACH BORROWER ENTITY SHALL BE LIABLE
HEREUNDER WITH RESPECT TO THE OBLIGATIONS ONLY FOR SUCH TOTAL MAXIMUM AMOUNT (IF
ANY) AS WOULD NOT RENDER ITS OBLIGATIONS HEREUNDER OR UNDER ANY OF THE LOAN
DOCUMENTS SUBJECT TO AVOIDANCE UNDER SECTION 548 OF THE BANKRUPTCY CODE OR ANY
COMPARABLE PROVISIONS OF ANY STATE LAW.
(III)
IN ORDER TO PROVIDE FOR A FAIR AND EQUITABLE
CONTRIBUTION AMONG THE BORROWER ENTITIES IN THE EVENT THAT ANY CONTRIBUTION IS
MADE BY AN INDIVIDUAL BORROWER ENTITY (A "FUNDING BORROWER"), SUCH FUNDING
BORROWER SHALL BE ENTITLED TO A CONTRIBUTION TO REIMBURSE SUCH FUNDING BORROWER
(A "REIMBURSEMENT CONTRIBUTION") FROM ALL OF THE OTHER BORROWER ENTITIES FOR ALL
PAYMENTS, DAMAGES AND EXPENSES INCURRED BY THAT FUNDING BORROWER IN DISCHARGING
ANY OF THE OBLIGATIONS, IN THE MANNER AND TO THE EXTENT SET FORTH IN THIS
SECTION 9.9.
(IV)
FOR PURPOSES HEREOF, THE "BENEFIT AMOUNT"
SHALL MEAN, WITH RESPECT TO ANY INDIVIDUAL BORROWER ENTITY AS OF ANY DATE OF
DETERMINATION, THE NET VALUE OF THE BENEFITS TO SUCH BORROWER ENTITY AND ITS
AFFILIATES FROM EXTENSIONS OF CREDIT MADE BY LENDER TO (A) SUCH BORROWER ENTITY
AND (B) TO THE OTHER BORROWER ENTITIES HEREUNDER AND UNDER THE LOAN DOCUMENTS TO
THE EXTENT SUCH OTHER BORROWER ENTITIES HAVE PLEDGED THEIR RESPECTIVE PLEDGED
INTERESTS (AS DEFINED IN THE PLEDGE AGREEMENT) TO SECURE THE OBLIGATIONS OF SUCH
BORROWER ENTITY TO LENDER.
(V)
EACH BORROWER ENTITY SHALL BE LIABLE TO A
FUNDING BORROWER IN AN AMOUNT EQUAL TO THE GREATER OF (A) THE (I) RATIO OF THE
BENEFIT AMOUNT OF SUCH BORROWER ENTITY TO THE TOTAL AMOUNT OF OBLIGATIONS,
MULTIPLIED BY (II) THE AMOUNT OF OBLIGATIONS PAID BY SUCH FUNDING BORROWER, AND
(B) NINETY-FIVE PERCENT (95%) OF THE EXCESS OF THE FAIR SALEABLE VALUE OF THE
ASSETS OF SUCH BORROWER OVER THE TOTAL
136
LIABILITIES OF SUCH BORROWER ENTITY (INCLUDING THE MAXIMUM AMOUNT REASONABLY
EXPECTED TO BECOME DUE IN RESPECT OF CONTINGENT LIABILITIES) DETERMINED AS OF
THE DATE ON WHICH THE PAYMENT MADE BY A FUNDING BORROWER IS DEEMED MADE FOR
PURPOSES