PERIOD WITH RESPECT THERETO (WHETHER DUE TO THE TERMINATION OF THIS AGREEMENT,
UPON AN EVENT OF DEFAULT, OR OTHERWISE), INCLUDING, IN EACH CASE, ANY SUCH LOSS
OR EXPENSE (BUT EXCLUDING LOSS OF MARGIN OR ANTICIPATED PROFITS) ARISING FROM
THE REEMPLOYMENT OF FUNDS OBTAINED BY IT OR FROM FEES PAYABLE TO TERMINATE THE
DEPOSITS FROM WHICH SUCH FUNDS WERE OBTAINED; PROVIDED, HOWEVER, THAT AGENT OR
ANY LENDER, IF REQUESTING INDEMNIFICATION, SHALL HAVE DELIVERED TO THE BORROWERS
A CERTIFICATE AS TO THE AMOUNT OF SUCH LOSS OR EXPENSE, WHICH CERTIFICATE SHALL
BE CONCLUSIVE IN THE ABSENCE OF MANIFEST ERROR.
CALCULATION OF ALL AMOUNTS
PAYABLE TO AGENT OR ANY SUCH LENDER UNDER THIS SECTION 2.16 SHALL BE MADE AS
THOUGH SUCH LENDER HAD ACTUALLY FUNDED THE RELEVANT LIBOR RATE LOAN THROUGH THE
PURCHASE OF A DEPOSIT BEARING INTEREST AT THE LIBOR RATE IN AN AMOUNT EQUAL TO
THE AMOUNT OF SUCH LIBOR RATE LOAN AND HAVING A MATURITY COMPARABLE TO THE
RELEVANT INTEREST PERIOD; PROVIDED, HOWEVER, THAT EACH LENDER MAY FUND EACH OF
THE LIBOR RATE LOANS IN ANY MANNER IT SEES FIT, AND THE FOREGOING ASSUMPTION
SHALL BE UTILIZED ONLY FOR THE CALCULATION OF AMOUNTS PAYABLE UNDER THIS
SECTION 2.16.
THIS COVENANT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND
THE PAYMENT OF THE ADVANCES AND ALL OTHER AMOUNTS PAYABLE HEREUNDER FOR A PERIOD
OF NINE MONTHS THEREAFTER.
2.17
JOINT AND SEVERAL LIABILITY OF BORROWERS.
(A)
EACH BORROWER IS ACCEPTING JOINT AND
SEVERAL LIABILITY HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS IN CONSIDERATION
OF THE FINANCIAL ACCOMMODATIONS TO BE PROVIDED BY THE AGENT AND THE LENDERS
UNDER THIS AGREEMENT, FOR THE MUTUAL BENEFIT, DIRECTLY AND INDIRECTLY,
42
OF EACH BORROWER AND IN CONSIDERATION OF THE UNDERTAKINGS OF THE OTHER BORROWERS
TO ACCEPT JOINT AND SEVERAL LIABILITY FOR THE OBLIGATIONS.
(B)
EACH BORROWER, JOINTLY AND SEVERALLY, HEREBY
IRREVOCABLY AND UNCONDITIONALLY ACCEPTS, NOT MERELY AS A SURETY BUT ALSO AS A
CO-DEBTOR, JOINT AND SEVERAL LIABILITY WITH THE OTHER BORROWERS, WITH RESPECT TO
THE PAYMENT AND PERFORMANCE OF ALL OF THE OBLIGATIONS (INCLUDING, WITHOUT
LIMITATION, ANY OBLIGATIONS ARISING UNDER THIS SECTION 2.17), IT BEING THE
INTENTION OF THE PARTIES HERETO THAT ALL THE OBLIGATIONS SHALL BE THE JOINT AND
SEVERAL OBLIGATIONS OF EACH PERSON COMPOSING BORROWERS WITHOUT PREFERENCES OR
DISTINCTION AMONG THEM.
(C)
IF AND TO THE EXTENT THAT ANY OF BORROWERS
SHALL FAIL TO MAKE ANY PAYMENT WITH RESPECT TO ANY OF THE OBLIGATIONS AS AND
WHEN DUE OR TO PERFORM ANY OF THE OBLIGATIONS IN ACCORDANCE WITH THE TERMS
THEREOF, THEN IN EACH SUCH EVENT THE OTHER PERSONS COMPOSING BORROWERS WILL MAKE
SUCH PAYMENT WITH RESPECT TO, OR PERFORM, SUCH OBLIGATION.
(D)
THE OBLIGATIONS OF EACH PERSON COMPOSING
BORROWERS UNDER THE PROVISIONS OF THIS SECTION 2.17 CONSTITUTE THE ABSOLUTE AND
UNCONDITIONAL, FULL RECOURSE OBLIGATIONS OF EACH PERSON COMPOSING BORROWERS
ENFORCEABLE AGAINST EACH SUCH BORROWER TO THE FULL EXTENT OF ITS PROPERTIES AND
ASSETS, IRRESPECTIVE OF THE VALIDITY, REGULARITY OR ENFORCEABILITY OF THIS
AGREEMENT OR ANY OTHER CIRCUMSTANCES WHATSOEVER.
(E)
EXCEPT AS