OF THE OBLIGATIONS, WITHOUT FIRST
PROCEEDING AGAINST ANY OTHER CREDIT PARTY OR ANY OTHER PERSON, OR AGAINST ANY
SECURITY OR COLLATERAL FOR THE OBLIGATIONS.
EACH BORROWER CONSENTS AND AGREES
THAT AGENT SHALL BE UNDER NO OBLIGATION TO MARSHAL ANY ASSETS IN FAVOR OF ANY
CREDIT PARTY OR AGAINST OR IN PAYMENT OF ANY OR ALL OF THE OBLIGATIONS.
(C)
EACH BORROWER IS OBLIGATED TO REPAY THE
OBLIGATIONS AS A JOINT AND SEVERAL OBLIGOR UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
TO THE EXTENT THAT ANY BORROWER SHALL, UNDER THIS AGREEMENT AS
A JOINT AND SEVERAL OBLIGOR, REPAY ANY OF THE OBLIGATIONS CONSTITUTING THE LOAN
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 (I) RENDERING SUCH BORROWER "INSOLVENT" WITHIN THE
MEANING OF SECTION 101 (31) OF THE BANKRUPTCY
61
CODE, SECTION 2 OF THE UNIFORM FRAUDULENT TRANSFER ACT ("UFTA") OR SECTION 2 OF
THE UNIFORM FRAUDULENT CONVEYANCE ACT ("UFCA"), (II) 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
(III) LEAVING SUCH BORROWER UNABLE TO PAY ITS DEBTS AS THEY BECOME DUE WITHIN
THE MEANING OF SECTION 548 OF THE BANKRUPTCY CODE, SECTION 4 OF THE UFTA OR
SECTION 5 OF THE UFCA.
ALL RIGHTS AND CLAIMS OF CONTRIBUTION, INDEMNIFICATION,
AND REIMBURSEMENT UNDER THIS SECTION 12.13 SHALL BE SUBORDINATE IN RIGHT OF
PAYMENT TO THE PRIOR INDEFEASIBLE PAYMENT IN FULL IN CASH OF THE OBLIGATIONS.
THE PROVISIONS OF THIS SECTION 12.13 SHALL, TO THE EXTENT INCONSISTENT WITH ANY
PROVISION IN ANY LOAN DOCUMENT, SUPERSEDE SUCH INCONSISTENT PROVISION.
(D)
IF (I) ANY COURT HOLDS THAT BORROWERS ARE
GUARANTORS AND NOT JOINTLY AND SEVERALLY LIABLE AS PRINCIPAL OBLIGORS OR
(II) BANKRUPTCY OR REORGANIZATION PROCEEDINGS AT ANY TIME ARE INSTITUTED BY OR
AGAINST ANY BORROWER UNDER ANY DEBTOR RELIEF LAW, THEN EACH BORROWER HEREBY:
(A) EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT POSSIBLE, EXCEPT AS
OTHERWISE PROVIDED IN SECTION 12.13(C), ON BEHALF OF SUCH BORROWER, ANY AND ALL
RIGHTS AT LAW OR IN EQUITY TO SUBROGATION, REIMBURSEMENT, EXONERATION,
CONTRIBUTION, INDEMNIFICATION, SET OFF OR ANY OTHER RIGHTS THAT COULD ACCRUE TO
A SURETY AGAINST A PRINCIPAL, TO A GUARANTOR AGAINST A MAKER OR OBLIGOR, TO AN
ACCOMMODATION PARTY AGAINST THE PARTY ACCOMMODATED, TO A HOLDER OR TRANSFEREE