AT ANY SUCH SALE, WHETHER AGENT OR ANY OTHER PERSON
IS THE SUCCESSFUL BIDDER, SHALL BE CONCLUSIVELY DEEMED TO BE THE FAIR MARKET
VALUE OF THE COLLATERAL, AND THE DIFFERENCE BETWEEN SUCH BID AMOUNT AND THE
REMAINING BALANCE OF THE OBLIGATIONS SHALL BE CONCLUSIVELY DEEMED TO BE THE
AMOUNT OF THE OBLIGATIONS GUARANTEED UNDER THIS SECTION 5.10, NOTWITHSTANDING
THAT ANY PRESENT OR FUTURE LAW OR COURT DECISION MAY HAVE THE EFFECT OF REDUCING
THE AMOUNT OF ANY DEFICIENCY CLAIM TO WHICH AGENT OR ANY LENDER MIGHT OTHERWISE
BE ENTITLED BUT FOR SUCH BIDDING AT ANY SUCH SALE.
5.10.3
EXTENT OF LIABILITY; CONTRIBUTION.
A.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EACH
BORROWER'S LIABILITY UNDER THIS SECTION 5.10 SHALL BE LIMITED TO THE GREATER OF
(I) ALL AMOUNTS FOR WHICH SUCH BORROWER IS PRIMARILY LIABLE, AS DESCRIBED BELOW,
AND (II) SUCH BORROWER'S ALLOCABLE AMOUNT.
B.
IF ANY BORROWER MAKES A PAYMENT UNDER THIS SECTION 5.10 OF ANY
OBLIGATIONS (OTHER THAN AMOUNTS FOR WHICH SUCH BORROWER IS PRIMARILY LIABLE) (A
"GUARANTOR PAYMENT") THAT, TAKING INTO ACCOUNT ALL OTHER GUARANTOR PAYMENTS
PREVIOUSLY OR CONCURRENTLY MADE BY ANY OTHER BORROWER, EXCEEDS THE AMOUNT THAT
SUCH BORROWER WOULD OTHERWISE HAVE PAID IF EACH BORROWER HAD PAID THE AGGREGATE
OBLIGATIONS SATISFIED BY SUCH GUARANTOR PAYMENTS IN THE SAME PROPORTION THAT
SUCH BORROWER'S ALLOCABLE AMOUNT BORE TO THE TOTAL ALLOCABLE AMOUNTS OF ALL
BORROWERS, THEN SUCH BORROWER SHALL BE ENTITLED TO RECEIVE CONTRIBUTION AND
INDEMNIFICATION PAYMENTS FROM, AND TO BE REIMBURSED BY, EACH OTHER BORROWER FOR
THE AMOUNT OF SUCH EXCESS, PRO RATA BASED UPON THEIR RESPECTIVE ALLOCABLE
AMOUNTS IN EFFECT IMMEDIATELY PRIOR TO SUCH GUARANTOR PAYMENT.
THE "ALLOCABLE
AMOUNT" FOR ANY BORROWER SHALL BE THE MAXIMUM AMOUNT THAT COULD THEN BE
RECOVERED FROM SUCH BORROWER UNDER THIS SECTION 5.10 WITHOUT RENDERING SUCH
PAYMENT VOIDABLE UNDER SECTION 548 OF THE BANKRUPTCY CODE OR UNDER ANY
APPLICABLE STATE FRAUDULENT TRANSFER OR CONVEYANCE ACT, OR SIMILAR STATUTE OR
COMMON LAW.
C.
NOTHING CONTAINED IN THIS SECTION 5.10 SHALL LIMIT THE
LIABILITY OF ANY BORROWER TO PAY LOANS MADE DIRECTLY OR INDIRECTLY TO THAT
BORROWER (INCLUDING LOANS ADVANCED TO ANY OTHER BORROWER AND THEN RE-LOANED OR
OTHERWISE TRANSFERRED TO, OR FOR THE BENEFIT OF, SUCH BORROWER), LC OBLIGATIONS
RELATING TO LETTERS OF CREDIT ISSUED TO SUPPORT SUCH BORROWER'S BUSINESS, AND
ALL ACCRUED INTEREST, FEES, EXPENSES AND OTHER RELATED OBLIGATIONS WITH RESPECT
THERETO, FOR WHICH SUCH BORROWER SHALL BE PRIMARILY LIABLE FOR ALL PURPOSES
HEREUNDER.
AGENT AND LENDERS SHALL HAVE THE RIGHT, AT ANY TIME IN THEIR
DISCRETION, TO CONDITION LOANS AND LETTERS OF
57
CREDIT UPON A SEPARATE CALCULATION OF BORROWING AVAILABILITY FOR EACH BORROWER
AND TO RESTRICT THE DISBURSEMENT AND USE OF SUCH LOANS AND LETTERS OF CREDIT TO
SUCH BORROWER.
5.10.4
JOINT ENTERPRISE.
EACH BORROWER HAS REQUESTED THAT
AGENT AND LENDERS MAKE THIS CREDIT FACILITY AVAILABLE TO BORROWERS ON A COMBINED
BASIS, IN ORDER TO FINANCE BORROWERS' BUSINESS MOST EFFICIENTLY AND
ECONOMICALLY.
BORROWERS' BUSINESS IS A MUTUAL AND COLLECTIVE ENTERPRISE, AND
BORROWERS BELIEVE THAT CONSOLIDATION OF THEIR CREDIT