AS OF ANY
DATE SHALL MEAN (A) THE AMOUNT OF THE TOTAL ASSETS OF SUCH GUARANTOR AS OF SUCH
DATE MINUS (B) THE AMOUNT OF THE TOTAL LIABILITIES OF SUCH GUARANTOR AS OF SUCH
DATE, IN EACH CASE THAT WOULD BE REFLECTED ON A BALANCE SHEET PREPARED ON A
CONSOLIDATED BASIS AS OF SUCH DATE IN ACCORDANCE WITH GAAP.
SECTION 3.03.
SUBORDINATION.
(A)
NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, EACH GUARANTOR HEREBY AGREES NOT TO EXERCISE ANY
RIGHTS UNDER SECTIONS 3.01 AND 3.02 OR ANY OTHER RIGHTS OF INDEMNITY,
CONTRIBUTION OR SUBROGATION UNDER APPLICABLE LAWS OR OTHERWISE IN RESPECT OF
PAYMENTS HEREUNDER UNLESS AND UNTIL ALL OF THE GUARANTEED OBLIGATIONS SHALL HAVE
BEEN INDEFEASIBLY PAID IN FULL IN CASH.
NO FAILURE ON THE PART OF THE BORROWER
OR ANY GUARANTOR TO MAKE THE PAYMENTS REQUIRED BY SECTIONS 3.01 AND 3.02 (OR ANY
OTHER PAYMENTS REQUIRED UNDER APPLICABLE LAW OR OTHERWISE) SHALL IN ANY RESPECT
LIMIT THE OBLIGATIONS AND LIABILITIES OF ANY GUARANTOR WITH RESPECT TO ITS
OBLIGATIONS HEREUNDER, AND EACH GUARANTOR SHALL REMAIN LIABLE FOR THE FULL
AMOUNT OF THE OBLIGATIONS OF SUCH GUARANTOR HEREUNDER.
5
(B)
EACH GUARANTOR HEREBY AGREES THAT ALL INDEBTEDNESS AND OTHER MONETARY
OBLIGATIONS OWED BY IT TO ANY OTHER GUARANTOR OR ANY SUBSIDIARY THAT IS NOT A
GUARANTOR SHALL BE FULLY SUBORDINATED TO THE INDEFEASIBLE PAYMENT IN FULL IN
CASH OF THE OBLIGATIONS; PROVIDED THAT SUCH SUBORDINATION SHALL NOT OPERATE TO
PREVENT THE PAYMENT OF SUCH INDEBTEDNESS AND OTHER MONETARY OBLIGATIONS
(INCLUDING, WITHOUT LIMITATION, TO THE EXTENT PERMITTED BY THE CREDIT AGREEMENT,
DIVIDENDS) BETWEEN THE GUARANTORS AND/OR ANY SUBSIDIARY EXCEPT AFTER AND DURING
THE CONTINUATION OF AN EVENT OF DEFAULT.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01.
EACH GUARANTOR REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE
AGENT AND THE OTHER CREDIT PARTIES THAT (A) THE EXECUTION, DELIVERY AND
PERFORMANCE BY SUCH GUARANTOR OF THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE OR OTHER ORGANIZATIONAL ACTION, AND THAT THIS AGREEMENT HAS
BEEN DULY AND VALIDLY EXECUTED BY SUCH GUARANTOR AND CONSTITUTES ITS LEGAL,
VALID AND BINDING OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT TO THE EXTENT ENFORCEMENT MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY AND OTHER SIMILAR LAWS AFFECTING CREDITOR'S RIGHTS GENERALLY, AND
(B) ALL REPRESENTATIONS AND WARRANTIES SET FORTH IN THE CREDIT AGREEMENT AS TO
SUCH GUARANTOR ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS.
ARTICLE V
MISCELLANEOUS
SECTION 5.01.
NOTICES.
ALL COMMUNICATIONS AND NOTICES HEREUNDER SHALL (EXCEPT
AS OTHERWISE EXPRESSLY PERMITTED HEREIN) BE IN WRITING AND GIVEN AS PROVIDED IN
SECTION 10.02 OF THE CREDIT AGREEMENT.
SECTION 5.02.
WAIVERS; AMENDMENT.
(A)
THE RIGHTS, REMEDIES, POWERS,
PRIVILEGES AND DISCRETIONS OF THE ADMINISTRATIVE AGENT HEREUNDER (HEREIN, THE
"ADMINISTRATIVE AGENT'S RIGHTS AND REMEDIES") SHALL BE CUMULATIVE AND NOT
EXCLUSIVE OF ANY RIGHTS OR REMEDIES WHICH IT WOULD OTHERWISE HAVE.
NO DELAY OR
OMISSION BY THE ADMINISTRATIVE AGENT IN EXERCISING OR ENFORCING ANY OF THE
ADMINISTRATIVE AGENT'S RIGHTS AND REMEDIES SHALL OPERATE AS, OR CONSTITUTE, A
WAIVER THEREOF.
NO WAIVER