OBTAINING PAYMENT OF ANY OF THE OBLIGATIONS
HEREUNDER OR TO ELECT ANY OTHER REMEDY.
THE PROVISIONS OF THIS SECTION 2.15
SHALL REMAIN IN EFFECT UNTIL ALL OF THE OBLIGATIONS SHALL HAVE BEEN PAID IN FULL
OR OTHERWISE FULLY SATISFIED.
IF AT ANY TIME, ANY PAYMENT, OR ANY PART THEREOF,
MADE IN RESPECT OF ANY OF THE OBLIGATIONS, IS RESCINDED OR MUST OTHERWISE BE
RESTORED OR RETURNED BY ANY AGENT OR LENDER UPON THE INSOLVENCY, BANKRUPTCY OR
REORGANIZATION OF ANY BORROWER, OR OTHERWISE, THE PROVISIONS OF THIS
SECTION 2.15 WILL FORTHWITH BE REINSTATED IN EFFECT, AS THOUGH SUCH PAYMENT HAD
NOT BEEN MADE.
58
(H)
UNTIL SUCH TIME AS ALL OF THE OBLIGATIONS
HAVE BEEN FINALLY PAID IN FULL:
(I) EACH BORROWER HEREBY WAIVES AND POSTPONES
ANY RIGHT OF SUBROGATION SUCH BORROWER HAS OR MAY HAVE AS AGAINST ANY OTHER
BORROWER WITH RESPECT TO THE OBLIGATIONS; (II) EACH BORROWER HEREBY WAIVES AND
POSTPONES ANY RIGHT TO PROCEED AGAINST ANY OTHER BORROWER, NOW OR HEREAFTER, FOR
CONTRIBUTION, INDEMNITY, REIMBURSEMENT, OR ANY OTHER SURETYSHIP RIGHTS AND
CLAIMS (IRRESPECTIVE OF WHETHER DIRECT OR INDIRECT, LIQUIDATED OR CONTINGENT),
WITH RESPECT TO THE OBLIGATIONS; AND (III) EACH BORROWER ALSO HEREBY WAIVES AND
POSTPONES ANY RIGHT TO PROCEED OR TO SEEK RECOURSE AGAINST OR WITH RESPECT TO
ANY PROPERTY OR ASSET OF ANY OTHER BORROWER WITH RESPECT TO THE OBLIGATIONS.
(I)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH IN THIS AGREEMENT, IT IS THE INTENT OF THE PARTIES HERETO THAT THE
LIABILITY INCURRED BY EACH BORROWER IN RESPECT OF THE OBLIGATIONS OF THE OTHER
BORROWERS (AND ANY LIEN GRANTED BY EACH BORROWER TO SECURE SUCH OBLIGATIONS),
NOT CONSTITUTE A FRAUDULENT CONVEYANCE UNDER SECTION 548 OF THE BANKRUPTCY CODE
OR A FRAUDULENT CONVEYANCE OR FRAUDULENT TRANSFER UNDER THE PROVISIONS OF ANY
APPLICABLE LAW OF ANY STATE, PROVINCE OR OTHER GOVERNMENTAL UNIT ("FRAUDULENT
CONVEYANCE"). CONSEQUENTLY, EACH BORROWER, EACH AGENT AND EACH LENDER HEREBY
AGREES THAT IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT THE INCURRENCE
OF LIABILITY BY ANY BORROWER IN RESPECT OF THE OBLIGATIONS OF ANY OTHER BORROWER
(OR ANY LIENS GRANTED BY SUCH BORROWER TO SECURE SUCH OBLIGATIONS) WOULD, BUT
FOR THE APPLICATION OF THIS SENTENCE, CONSTITUTE A FRAUDULENT CONVEYANCE, SUCH
LIABILITY (AND SUCH LIENS) SHALL BE VALID AND ENFORCEABLE ONLY TO THE MAXIMUM
EXTENT THAT WOULD NOT CAUSE THE SAME TO CONSTITUTE A FRAUDULENT CONVEYANCE, AND
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL AUTOMATICALLY BE DEEMED TO
HAVE BEEN AMENDED ACCORDINGLY.
(J)
THE LENDERS SHALL NOT BE ENTITLED TO
REQUEST PAYMENT OR PERFORMANCE FROM A GERMAN BORROWER UNDER THE JOINT AND
SEVERAL LIABILITY PURSUANT TO THIS SECTION 2.15 IF AND TO THE EXTENT THAT THE
JOINT AND SEVERAL LIABILITY OF A GERMAN BORROWER EXTENDS TO OBLIGATIONS OF AN
AFFILIATED COMPANY (VERBUNDENES UNTERNEHMEN) WITHIN THE MEANING OF SECTION 15 ET
SEQ. OF THE GERMAN STOCK CORPORATION ACT (AKTIENGESETZ) OF SUCH GERMAN BORROWER
(OTHER THAN SUCH GERMAN BORROWER'S SUBSIDIARIES AND THEIR SUBSIDIARIES) AND IF
AND TO THE EXTENT THAT SUCH ENFORCEMENT WOULD LEAD TO A SITUATION