New Mezzanine
Borrower, as the case may be, shall have received written notice thereof.
Solely for the purposes of this Section 9.8, Lender shall reimburse Borrower for
all of its reasonable out-of-pocket costs and expenses (including, any
additional recording tax due and payable by Borrower in connection with such
restructuring and any title or UCC insurance premiums, costs and expenses
incurred in connection with the issuance of the insurance policies and
endorsements required to be delivered by Borrower pursuant to
140
Section 9.8(c)(vi) hereof, but excluding the fees and expenses of Borrower's
counsel) that Borrower incurs in connection with complying with a request made
by Lender under this Section 9.8. Notwithstanding the foregoing, the provisions
of this paragraph shall in no way limit or affect any obligation of Borrower to
pay any costs expressly required to be paid by Borrower 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