ANY SUCH INDEBTEDNESS OF ANY LOAN PARTY, SUCH AMOUNT SHALL
BE HELD IN TRUST FOR THE BENEFIT OF THE CREDIT PARTIES AND SHALL FORTHWITH BE
PAID TO THE ADMINISTRATIVE AGENT TO BE CREDITED AGAINST THE PAYMENT OF THE
OBLIGATIONS, WHETHER MATURED OR UNMATURED, IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS. SUBJECT TO THE FOREGOING, TO THE EXTENT
THAT ANY BORROWER SHALL, UNDER THIS AGREEMENT AS A JOINT AND SEVERAL OBLIGOR,
REPAY ANY OF THE OBLIGATIONS CONSTITUTING REVOLVING LOANS MADE TO ANOTHER
BORROWER HEREUNDER OR OTHER OBLIGATIONS INCURRED DIRECTLY AND PRIMARILY BY ANY
OTHER BORROWER (AN "ACCOMMODATION PAYMENT"), THEN THE BORROWER MAKING SUCH
ACCOMMODATION PAYMENT SHALL BE ENTITLED TO CONTRIBUTION AND INDEMNIFICATION
FROM, AND BE REIMBURSED BY, EACH OF THE OTHER BORROWERS IN AN AMOUNT, FOR EACH
OF SUCH OTHER BORROWERS, EQUAL TO A FRACTION OF SUCH ACCOMMODATION PAYMENT, THE
NUMERATOR OF WHICH FRACTION IS SUCH OTHER BORROWER'S ALLOCABLE AMOUNT AND THE
DENOMINATOR OF WHICH IS THE SUM OF THE ALLOCABLE AMOUNTS OF ALL OF THE
BORROWERS. AS OF ANY DATE OF DETERMINATION, THE "ALLOCABLE AMOUNT" OF EACH
BORROWER SHALL BE EQUAL TO THE MAXIMUM AMOUNT OF LIABILITY FOR ACCOMMODATION
PAYMENTS WHICH COULD BE ASSERTED AGAINST SUCH BORROWER HEREUNDER WITHOUT
(A) RENDERING SUCH BORROWER "INSOLVENT" WITHIN THE MEANING OF SECTION 101 (31)
OF THE BANKRUPTCY CODE, SECTION 2 OF THE UNIFORM FRAUDULENT TRANSFER ACT
("UFTA") OR SECTION 2 OF THE UNIFORM FRAUDULENT CONVEYANCE ACT ("UFCA"),
(B) LEAVING SUCH BORROWER WITH UNREASONABLY SMALL CAPITAL OR ASSETS, WITHIN THE
MEANING OF SECTION 548 OF THE BANKRUPTCY CODE, SECTION 4 OF THE UFTA, OR SECTION
5 OF THE UFCA, OR (C) LEAVING SUCH BORROWER UNABLE TO PAY ITS DEBTS AS THEY
BECOME DUE WITHIN THE MEANING OF SECTION 548 OF THE BANKRUPTCY CODE OR SECTION 4
OF THE UFTA, OR SECTION 5 OF THE UFCA.
10.21
No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
10.22
Foreign Asset Control Regulations. Neither of the advance of the
Loans nor the use of the proceeds of any thereof will violate the Trading With
the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the "Trading With the Enemy
Act") or any of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the "Foreign
Assets Control Regulations") or any enabling legislation or executive order
relating thereto (which for the avoidance of doubt shall include, but shall not
be limited to (a) Executive Order 13224 of September 21, 2001 Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)) (the "Executive Order") and