BANKRUPTCY OR INSOLVENCY PROCEEDING OR
(B) AN INVOLUNTARY BANKRUPTCY OR INSOLVENCY PROCEEDING COMMENCED BY GUARANTOR,
INDEMNITOR OR ANY AFFILIATE OF ANY OF THE FOREGOING AND BORROWER FAILS TO USE
ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN A DISMISSAL OF SUCH PROCEEDINGS;
OR (VI) IN THE EVENT THAT BORROWER (A) SOLICITS OR CAUSES TO BE SOLICITED
111
PETITIONING CREDITORS FOR ANY INVOLUNTARY PETITION AGAINST BORROWER FROM ANY
PERSON OR (B) FILES AN ANSWER CONSENTING TO OR OTHERWISE ACQUIESCING IN OR
JOINING IN ANY INVOLUNTARY PETITION FILED AGAINST IT BY ANY OTHER PERSON UNDER
THE BANKRUPTCY CODE OR ANY OTHER FEDERAL OR STATE BANKRUPTCY OR INSOLVENCY LAW.
(D)
NOTHING HEREIN SHALL BE DEEMED TO BE A WAIVER OF ANY RIGHT WHICH
LENDER MAY HAVE UNDER SECTION 506(A), 506(B), 1111(B) OR ANY OTHER PROVISION OF
THE BANKRUPTCY CODE TO FILE A CLAIM FOR THE FULL AMOUNT OF THE INDEBTEDNESS
SECURED BY THE SECURITY INSTRUMENTS OR TO REQUIRE THAT ALL COLLATERAL SHALL
CONTINUE TO SECURE ALL OF THE INDEBTEDNESS OWING TO LENDER IN ACCORDANCE WITH
THIS AGREEMENT, THE NOTE, THE SECURITY INSTRUMENTS AND THE OTHER LOAN DOCUMENTS.
Section 9.5
Contributions and Waivers.
(A)
AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
EACH BORROWER WILL BENEFIT, DIRECTLY AND INDIRECTLY, FROM EACH BORROWER'S
OBLIGATION TO PAY THE DEBT AND PERFORM ITS OBLIGATIONS AND IN CONSIDERATION
THEREFOR EACH BORROWER DESIRES TO ENTER INTO AN ALLOCATION AND CONTRIBUTION
AGREEMENT AMONG THEMSELVES AS SET FORTH IN THIS SECTION 9.5 TO ALLOCATE SUCH
BENEFITS AMONG THEMSELVES AND TO PROVIDE A FAIR AND EQUITABLE AGREEMENT TO MAKE
CONTRIBUTIONS AMONG EACH BORROWER IN THE EVENT ANY PAYMENT IS MADE BY ANY
INDIVIDUAL BORROWER HEREUNDER TO LENDER (SUCH PAYMENT BEING REFERRED TO HEREIN
AS A "CONTRIBUTION," AND FOR PURPOSES OF THIS SECTION 9.5, INCLUDES ANY EXERCISE
OF RECOURSE BY LENDER AGAINST ANY COLLATERAL OF A BORROWER AND APPLICATION OF
PROCEEDS OF SUCH COLLATERAL IN SATISFACTION OF SUCH BORROWER'S OBLIGATIONS, TO
LENDER UNDER THE LOAN DOCUMENTS).
(B)
EACH BORROWER SHALL BE LIABLE HEREUNDER WITH RESPECT TO THE
OBLIGATIONS ONLY FOR SUCH TOTAL MAXIMUM AMOUNT (IF ANY) THAT 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.
(C)
IN ORDER TO PROVIDE FOR A FAIR AND EQUITABLE CONTRIBUTION AMONG
BORROWERS IN THE EVENT THAT ANY CONTRIBUTION IS MADE BY AN INDIVIDUAL BORROWER
(A "FUNDING BORROWER"), SUCH FUNDING BORROWER SHALL BE ENTITLED TO A
REIMBURSEMENT CONTRIBUTION ("REIMBURSEMENT CONTRIBUTION") FROM ALL OTHER
BORROWERS 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 9.5.
(D)
FOR PURPOSES HEREOF, THE "BENEFIT AMOUNT" OF ANY INDIVIDUAL
BORROWER AS OF ANY DATE OF DETERMINATION SHALL BE THE NET VALUE OF THE BENEFITS
TO SUCH BORROWER AND ITS AFFILIATES FROM EXTENSIONS OF CREDIT MADE BY LENDER TO
(A) SUCH BORROWER AND (B) TO THE OTHER BORROWERS HEREUNDER AND