FAIR
SALEABLE VALUE IN EXCESS OF THE AMOUNT REQUIRED TO PAY ITS PROBABLE LIABILITY ON
ITS EXISTING DEBTS AS THEY FALL DUE FOR PAYMENT AND THAT THE SUM OF ITS DEBTS IS
NOT AND WILL NOT THEN BE GREATER THAN ALL OF ITS PROPERTY AT A FAIR VALUATION,
THAT SUCH BORROWER HAS, AND WILL HAVE, ACCESS TO ADEQUATE CAPITAL FOR THE
CONDUCT OF ITS BUSINESS AND THE ABILITY TO PAY ITS DEBTS FROM TIME TO TIME
INCURRED IN CONNECTION THEREWITH AS SUCH DEBTS MATURE AND THAT THE VALUE OF THE
BENEFITS TO BE DERIVED BY SUCH BORROWER FROM THE ACCESS TO FUNDS UNDER THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE INTER-BORROWER ARRANGEMENT SET
FORTH IN THIS SECTION 10.1) IS REASONABLY EQUIVALENT TO THE OBLIGATIONS
UNDERTAKEN PURSUANT HERETO.
(D)
BORROWER REPRESENTATIVE (ON BEHALF OF EACH
BORROWER) SHALL MAINTAIN RECORDS SPECIFYING (I) ALL OBLIGATIONS INCURRED BY EACH
BORROWER, (II) THE DATE OF SUCH INCURRENCE, (III) THE DATE AND AMOUNT OF ANY
PAYMENTS MADE IN RESPECT OF SUCH OBLIGATIONS AND (IV) ALL INTER-BORROWER
OBLIGATIONS PURSUANT TO THIS SECTION 10. BORROWER REPRESENTATIVE SHALL MAKE
COPIES OF SUCH RECORDS AVAILABLE TO LENDER, UPON REQUEST.
10.02
MAXIMUM AMOUNT OF JOINT AND SEVERAL LIABILITY.
NOTWITHSTANDING ANY PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, IT IS THE
INTENT OF THE PARTIES HERETO THAT THE PRIMARY AND SECONDARY NATURE OF THE
LIABILITIES OF THE BORROWERS, AND THE SECURITY INTERESTS GRANTED BY THE
BORROWERS TO SECURE THE OBLIGATIONS DIRECTLY INCURRED BY ANY BORROWER NOT
CONSTITUTE A FRAUDULENT CONVEYANCE UNDER SECTION 548 OF CHAPTER 11 OF TITLE 11
OF THE UNITED STATES CODE (11 U.S.C. § 101, ET SEQ.), AS AMENDED, OR A
FRAUDULENT CONVEYANCE OR FRAUDULENT TRANSFER UNDER THE APPLICABLE PROVISIONS OF
ANY FRAUDULENT CONVEYANCE, FRAUDULENT TRANSFER OR SIMILAR LAW OF ANY STATE,
NATION OR OTHER GOVERNMENTAL UNIT, AS IN EFFECT FROM TIME TO TIME OR OTHERWISE
BE RENDERED INVALID OR UNENFORCEABLE DUE TO THE NATURE OF THE JOINT AND SEVERAL
LIABILITY.
ACCORDINGLY,
LENDER AND BORROWERS AGREE THAT IF THE OBLIGATIONS OF
ANY BORROWER, OR ANY SECURITY INTERESTS GRANTED BY SUCH BORROWER SECURING THE
OBLIGATIONS WOULD, BUT FOR THE APPLICATION OF THIS SENTENCE, CONSTITUTE A
FRAUDULENT CONVEYANCE OR FRAUDULENT TRANSFER UNDER APPLICABLE LAW, OR WOULD
OTHERWISE RENDER SUCH BORROWER'S OBLIGATIONS OR THE SECURITY INTERESTS GRANTED
HEREIN INVALID OR UNENFORCEABLE, THE OBLIGATIONS OF SUCH BORROWER HEREUNDER, AS
WELL AS THE SECURITY INTERESTS SECURING SUCH OBLIGATIONS, SHALL BE VALID AND
ENFORCEABLE ONLY TO THE MAXIMUM EXTENT THAT WOULD NOT CAUSE SUCH OBLIGATIONS OR
SECURITY INTERESTS TO CONSTITUTE A FRAUDULENT CONVEYANCE OR FRAUDULENT TRANSFER
UNDER APPLICABLE LAW OR OTHERWISE RESULT IN SUCH INVALIDITY OR UNENFORCEABILITY;
PROVIDED HOWEVER THAT EACH BORROWER'S OBLIGATIONS SHALL BE PRESUMPTIVELY VALID
AND ENFORCEABLE TO THEIR FULLEST EXTENT IN ACCORDANCE WITH THE TERMS HEREOF OR
THEREOF, AS IF THIS SECTION 10.02 WERE NOT A PART OF THIS AGREEMENT.
41
10.03
AUTHORIZATION OF BORROWER REPRESENTATIVE BY BORROWERS.
(A)
EACH OF BORROWERS HEREBY IRREVOCABLY
AUTHORIZES BORROWER REPRESENTATIVE TO GIVE NOTICES, MAKE REQUESTS, MAKE
PAYMENTS, RECEIVE PAYMENTS AND NOTICES, GIVE RECEIPTS AND EXECUTE