OTHER BORROWER'S
FINANCIAL CONDITION OR ANY OTHER FACT WHICH MIGHT MATERIALLY INCREASE THE RISK
TO SUCH BORROWER OR CO-BORROWER, AS THE CASE MAY BE) WITH RESPECT TO ANY OF THE
OBLIGATIONS OR ALL OTHER DEMANDS WHATSOEVER, EXCEPT TO THE EXTENT SPECIFICALLY
SET FORTH HEREIN OR IN THE OTHER LOAN DOCUMENTS.
TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER AND THE CO-BORROWER EACH WAIVE THE BENEFIT OF ALL
PROVISIONS OF LAW WHICH ARE IN CONFLICT WITH THE TERMS OF THIS AGREEMENT.
THE
BORROWER AND THE CO-BORROWER EACH REPRESENT, WARRANT AND AGREE THAT ITS
OBLIGATIONS ARE NOT AND SHALL NOT BE SUBJECT TO ANY COUNTERCLAIMS, OFFSETS OR
DEFENSES OF ANY KIND AGAINST THE LENDER PARTIES, THE OTHER BORROWER OR ANY OTHER
GUARANTOR OF THE OBLIGATIONS NOW EXISTING OR WHICH MAY ARISE IN THE FUTURE.
IN THE EVENT THE CO-BORROWER SHALL MAKE A PAYMENT IN RESPECT OF THE LOANS OR ANY
OTHER OBLIGATIONS OR SHALL SUFFER ANY LOSS AS A RESULT OF ANY REALIZATION UPON
ANY OF ITS ASSETS PURSUANT TO ANY LOAN DOCUMENT, THE BORROWER SHALL, SUBJECT TO
THE LAST SENTENCE OF THIS CLAUSE (E), CONTRIBUTE TO THE CO-BORROWER AN AMOUNT
EQUAL TO SUCH PAYMENT MADE, OR LOSS SUFFERED, BY THE CO-BORROWER. NOTHING IN
THIS SECTION 2.23 SHALL AFFECT EACH OF THE BORROWER'S OR THE CO-BORROWER'S
SEVERAL LIABILITY FOR THE ENTIRE AMOUNT OF THE OBLIGATIONS.
THE BORROWER
COVENANTS AND AGREES THAT ITS OBLIGATION TO MAKE A CONTRIBUTION HEREUNDER TO THE
CO-BORROWER AND ITS RIGHT TO RECEIVE ANY CONTRIBUTION HEREUNDER FROM THE
CO-BORROWER SHALL BE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO THE
OBLIGATIONS.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT, AND EXCEPT AS SET FORTH IN
CLAUSE (E) ABOVE, THE BORROWER AND THE CO-BORROWER EACH HEREBY
EXPRESSLY AND
IRREVOCABLY SUBORDINATES TO PAYMENT OF THE OBLIGATIONS ANY AND ALL RIGHTS AT LAW
OR IN EQUITY TO SUBROGATION,
REIMBURSEMENT,
EXONERATION, CONTRIBUTION,
INDEMNIFICATION OR SET OFF AND ANY AND ALL DEFENSES AVAILABLE TO A SURETY,
GUARANTOR OR ACCOMMODATION CO-OBLIGOR UNTIL THE OBLIGATIONS ARE INDEFEASIBLY
PAID IN FULL IN CASH AND THE COMMITMENTS HAVE BEEN TERMINATED.
THE BORROWER AND
THE CO-BORROWER EACH ACKNOWLEDGES AND AGREES THAT THIS SUBORDINATION IS INTENDED
TO BENEFIT THE LENDERS AND SHALL NOT LIMIT OR OTHERWISE AFFECT SUCH BORROWER'S
OR CO-BORROWER'S, AS THE CASE MAY BE, LIABILITY HEREUNDER OR THE ENFORCEABILITY
OF THIS SECTION 2.23, AND THAT THE LENDERS AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS ARE INTENDED THIRD PARTY BENEFICIARIES OF THE WAIVERS AND AGREEMENTS SET
FORTH IN THIS SECTION 2.23.
SAVINGS CLAUSE.
IT IS THE INTENT OF THE LENDERS, THE ADMINISTRATIVE AGENT, THE BORROWER AND THE
CO-BORROWER THAT THE CO-BORROWER'S MAXIMUM OBLIGATIONS SHALL BE IN, BUT NOT IN
EXCESS OF:
(i)
in a case or proceeding commenced by or
against the Co-Borrower under the Bankruptcy Code on or within one year from the
date on which such Obligations are incurred, the maximum amount which would not
otherwise cause such Obligations to be avoidable or unenforceable against the
Co-Borrower under (A)