INCLUDE REFERENCES TO THE ADDITIONAL BORROWER.
SECTION 2.06
ADDITION OF SECTION 10.19 TO THE LOAN AGREEMENT; "JOINT AND
SEVERAL LIABILITY; RIGHTS OF CONTRIBUTION".
EFFECTIVE AS OF THE EFFECTIVE DATE,
A NEW SECTION 10.19 IS ADDED TO THE LOAN AGREEMENT TO READ IN ITS ENTIRETY AS
FOLLOWS:
"10.19
JOINT AND SEVERAL LIABILITY; RIGHTS OF CONTRIBUTION.
(A)
EACH BORROWER STATES AND ACKNOWLEDGES THAT:
(I) PURSUANT TO THIS
AGREEMENT, BORROWERS DESIRE TO UTILIZE THEIR BORROWING POTENTIAL ON A
CONSOLIDATED BASIS TO THE SAME EXTENT POSSIBLE IF THEY WERE MERGED INTO A SINGLE
ORGANIZATIONAL ENTITY AND THAT THIS AGREEMENT REFLECTS THE ESTABLISHMENT OF
CREDIT FACILITIES WHICH WOULD NOT OTHERWISE BE AVAILABLE TO SUCH BORROWER IF
EACH BORROWER WERE NOT JOINTLY AND SEVERALLY LIABLE FOR PAYMENT OF ALL OF THE
OBLIGATIONS; (II) IT HAS DETERMINED THAT IT WILL BENEFIT SPECIFICALLY AND
MATERIALLY FROM THE ADVANCES OF CREDIT CONTEMPLATED BY THIS AGREEMENT; (III) IT
IS BOTH A CONDITION PRECEDENT TO THE OBLIGATIONS OF AGENT AND LENDERS HEREUNDER
AND A DESIRE OF THE BORROWERS THAT EACH BORROWER EXECUTE AND DELIVER TO AGENT
AND THE LENDERS THIS AGREEMENT; AND (IV) BORROWERS HAVE REQUESTED AND BARGAINED
FOR THE STRUCTURE AND TERMS OF AND SECURITY FOR THE ADVANCES CONTEMPLATED BY
THIS AGREEMENT.
4
(B)
EACH BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(I) AGREES
THAT IT IS JOINTLY AND SEVERALLY LIABLE TO AGENT AND THE LENDERS FOR THE FULL
AND PROMPT PAYMENT OF THE OBLIGATIONS AND THE PERFORMANCE BY EACH BORROWER OF
ITS OBLIGATIONS HEREUNDER IN ACCORDANCE WITH THE TERMS HEREOF; (II) AGREES TO
FULLY AND PROMPTLY PERFORM ALL OF ITS OBLIGATIONS HEREUNDER WITH RESPECT TO EACH
ADVANCE OF CREDIT HEREUNDER AS IF SUCH ADVANCE HAD BEEN MADE DIRECTLY TO IT; AND
(III) AGREES AS A PRIMARY OBLIGATION TO INDEMNIFY AGENT AND THE LENDERS ON
DEMAND FOR AND AGAINST ANY LOSS INCURRED BY AGENT OR THE LENDERS AS A RESULT OF
ANY OF THE OBLIGATIONS OF ANY ONE OR MORE OF THE BORROWERS BEING OR BECOMING
VOID, VOIDABLE, UNENFORCEABLE OR INEFFECTIVE FOR ANY REASON WHATSOEVER, WHETHER
OR NOT KNOWN TO AGENT OR THE LENDERS OR ANY PERSON, THE AMOUNT OF SUCH LOSS
BEING THE AMOUNT WHICH AGENT OR THE LENDERS WOULD OTHERWISE HAVE BEEN ENTITLED
TO RECOVER FROM ANY ONE OR MORE OF THE BORROWERS.
(C)
IT IS THE INTENT OF EACH BORROWER THAT THE INDEBTEDNESS,
OBLIGATIONS AND LIABILITY HEREUNDER OF EITHER BORROWER NOT BE SUBJECT TO
CHALLENGE ON ANY BASIS, INCLUDING, WITHOUT LIMITATION, PURSUANT TO ANY
APPLICABLE FRAUDULENT CONVEYANCE OR FRAUDULENT TRANSFER LAWS. ACCORDINGLY, AS OF
THE DATE HEREOF, THE LIABILITY OF EACH BORROWER UNDER THIS SECTION 10.19,
TOGETHER WITH ALL OF ITS OTHER LIABILITIES TO ALL PERSONS AS OF THE DATE HEREOF
AND AS OF ANY OTHER DATE ON WHICH A TRANSFER OR CONVEYANCE IS DEEMED TO OCCUR BY
VIRTUE OF THIS AGREEMENT, CALCULATED IN AMOUNT SUFFICIENT TO PAY ITS PROBABLE
NET LIABILITIES ON ITS EXISTING INDEBTEDNESS AS THE SAME BECOME ABSOLUTE AND
MATURED ('DATED LIABILITIES') IS, AND IS TO BE, LESS THAN THE AMOUNT OF THE
AGGREGATE OF