ALL OF THE OBLIGATIONS), INCLUDING ANY CLAIM OF WAIVER, RELEASE,
SURRENDER, ALTERATION OR COMPROMISE OF ANY OF THE OBLIGATIONS, AND SHALL NOT BE
SUBJECT TO ANY DEFENSE OR SETOFF, COUNTERCLAIM, RECOUPMENT OR TERMINATION
WHATSOEVER BY REASON OF THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY OF THE
OBLIGATIONS, ANY IMPOSSIBILITY IN THE PERFORMANCE OF THE OBLIGATIONS OR
OTHERWISE.
SECTION 5.
AGREEMENT TO PAY; SUBORDINATION.
IN FURTHERANCE OF THE FOREGOING
AND NOT IN LIMITATION OF ANY OTHER RIGHT THAT THE AGENT OR ANY LENDER HAS AT LAW
OR IN EQUITY AGAINST THE GUARANTOR BY VIRTUE HEREOF, UPON THE FAILURE OF THE
BORROWER TO PAY ANY OBLIGATION WHEN AND AS THE SAME SHALL BECOME DUE, WHETHER AT
MATURITY, BY ACCELERATION, AFTER NOTICE OF PREPAYMENT OR OTHERWISE, THE
GUARANTOR HEREBY PROMISES TO AND WILL FORTHWITH PAY, OR CAUSE TO BE PAID, TO THE
AGENT OR SUCH LENDER AS DESIGNATED THEREBY IN CASH THE AMOUNT OF SUCH UNPAID
OBLIGATION.
UPON PAYMENT BY THE GUARANTOR OF ANY SUMS AS PROVIDED ABOVE, ALL
RIGHTS OF THE GUARANTOR AGAINST THE BORROWER ARISING AS A RESULT THEREOF BY WAY
OF RIGHT OF SUBROGATION, CONTRIBUTION, REIMBURSEMENT, INDEMNITY OR OTHERWISE
SHALL IN ALL RESPECTS BE SUBORDINATED AND JUNIOR IN RIGHT OF PAYMENT TO THE
PRIOR INDEFEASIBLE PAYMENT IN FULL OF ALL THE OBLIGATIONS (IT BEING UNDERSTOOD
THAT, AFTER THE DISCHARGE OF ALL THE OBLIGATIONS, SUCH RIGHTS MAY BE EXERCISED
BY THE GUARANTOR NOTWITHSTANDING THAT THE BORROWER MAY REMAIN CONTINGENTLY
LIABLE FOR INDEMNITY OR OTHER OBLIGATIONS).
IF ANY AMOUNT SHALL ERRONEOUSLY BE
PAID TO THE GUARANTOR ON ACCOUNT OF SUCH SUBROGATION SUCH AMOUNT SHALL BE HELD
IN TRUST FOR THE BENEFIT OF THE LENDERS AND SHALL FORTHWITH BE PAID TO THE AGENT
TO BE CREDITED AGAINST THE PAYMENT OF THE OBLIGATIONS, WHETHER MATURED OR
UNMATURED, IN ACCORDANCE WITH THE TERMS OF THE CREDIT AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
SECTION 6.
INFORMATION.
THE GUARANTOR ASSUMES ALL RESPONSIBILITY FOR BEING AND
KEEPING ITSELF INFORMED OF THE BORROWER'S FINANCIAL CONDITION AND ASSETS, AND OF
ALL OTHER CIRCUMSTANCES BEARING UPON THE RISK OF NONPAYMENT OF THE OBLIGATIONS
AND THE NATURE, SCOPE AND EXTENT OF THE RISKS THAT THE GUARANTOR ASSUMES AND
INCURS HEREUNDER, AND AGREES THAT NONE OF THE AGENT AND THE LENDERS WILL HAVE
ANY DUTY TO ADVISE THE GUARANTOR OF INFORMATION KNOWN TO IT OR ANY OF THEM
REGARDING SUCH CIRCUMSTANCES OR RISKS.
SECTION 7.
REPRESENTATIONS AND WARRANTIES.
THE GUARANTOR REPRESENTS AND
WARRANTS AS TO ITSELF THAT:
(A)
THE GUARANTOR IS A LIMITED LIABILITY COMPANY DULY FORMED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF FORMATION AND HAS ALL
REQUISITE AUTHORITY TO
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CONDUCT ITS BUSINESS IN EACH JURISDICTION IN WHICH ITS BUSINESS IS CONDUCTED
WHERE THE FAILURE TO SO QUALIFY WOULD HAVE A MATERIAL ADVERSE EFFECT.
(B)
THE GUARANTOR HAS THE FULL POWER AND AUTHORITY AND LEGAL RIGHT TO EXECUTE
AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER
(COLLECTIVELY, THE "TRANSACTIONS").
THE TRANSACTIONS HAVE BEEN DULY AUTHORIZED
BY PROPER CORPORATE PROCEEDINGS, AND THIS AGREEMENT CONSTITUTES A