CONTRACT, EQUITY OR OTHERWISE) FOR LOSSES SUFFERED BY
GUARANTORS IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE
TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED BY THIS GUARANTEE, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH, UNLESS IT IS DETERMINED BY A
FINAL AND NON-APPEALABLE JUDGMENT OR COURT ORDER BINDING ON AGENT OR SUCH LENDER
THAT THE LOSSES WERE THE RESULT OF ACTS OR OMISSIONS CONSTITUTING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
IN ANY SUCH LITIGATION, AGENT AND LENDERS
SHALL BE ENTITLED TO THE BENEFIT OF THE REBUTTABLE PRESUMPTION THAT IT ACTED IN
GOOD FAITH AND WITH THE EXERCISE OF ORDINARY CARE IN THE PERFORMANCE BY IT OF
THE TERMS OF THE LOAN AGREEMENT AND THE OTHER FINANCING AGREEMENTS.
11.
NOTICES.
ALL NOTICES, REQUESTS AND DEMANDS HEREUNDER SHALL BE IN
WRITING AND DEEMED TO HAVE BEEN GIVEN OR MADE: IF DELIVERED IN PERSON,
IMMEDIATELY UPON DELIVERY; IF BY TELEX, TELEGRAM OR FACSIMILE TRANSMISSION,
IMMEDIATELY UPON SENDING AND UPON CONFIRMATION OF RECEIPT; IF BY NATIONALLY
RECOGNIZED OVERNIGHT COURIER SERVICE WITH INSTRUCTIONS TO DELIVER THE NEXT
BUSINESS DAY, ONE (1) BUSINESS DAY AFTER SENDING; AND IF BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, FIVE (5) DAYS AFTER MAILING.
ALL NOTICES, REQUESTS
AND DEMANDS UPON THE PARTIES ARE TO BE GIVEN TO THE FOLLOWING ADDRESSES (OR TO
SUCH OTHER ADDRESS AS ANY PARTY MAY DESIGNATE BY NOTICE IN ACCORDANCE WITH THIS
SECTION):
If to a Guarantor:
Lerner New York Holding, Inc.
7
450 West 33rd Street
New York, New York 10001
Attention: Chief Financial Officer
Telephone No.: (212) 884-2110
Telecopy No.: (212) 884-2103
If to Agent and Lender:
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, New York 10036
Attention: Portfolio Manager
Telephone No.: (212) 545-4280
12.
PARTIAL INVALIDITY.
IF ANY PROVISION OF THIS GUARANTEE IS HELD TO
BE INVALID OR UNENFORCEABLE, SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT
INVALIDATE THIS GUARANTEE AS A WHOLE, BUT THIS GUARANTEE SHALL BE CONSTRUED AS
THOUGH IT DID NOT CONTAIN THE PARTICULAR PROVISION HELD TO BE INVALID OR
UNENFORCEABLE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE CONSTRUED
AND ENFORCED ONLY TO SUCH EXTENT AS SHALL BE PERMITTED BY APPLICABLE LAW.
13.
ENTIRE AGREEMENT.
THIS GUARANTEE REPRESENTS THE ENTIRE AGREEMENT
AND UNDERSTANDING OF THIS PARTIES CONCERNING THE SUBJECT MATTER HEREOF, AND
SUPERSEDES ALL OTHER PRIOR AGREEMENTS, UNDERSTANDINGS, NEGOTIATIONS AND
DISCUSSIONS, REPRESENTATIONS, WARRANTIES, COMMITMENTS, PROPOSALS, OFFERS AND
CONTRACTS CONCERNING THE SUBJECT MATTER HEREOF, WHETHER ORAL OR WRITTEN.
14.
SUCCESSORS AND ASSIGNS.
THIS GUARANTEE, THE OTHER FINANCING
AGREEMENTS AND ANY OTHER DOCUMENT REFERRED TO HEREIN OR THEREIN SHALL BE BINDING
UPON EACH GUARANTOR AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND SHALL INURE
TO THE BENEFIT OF AGENT AND EACH LENDER AND THEIR RESPECTIVE SUCCESSORS,
ENDORSEES, TRANSFEREES AND ASSIGNS.
THE LIQUIDATION, DISSOLUTION OR TERMINATION
OF ANY GUARANTOR SHALL NOT TERMINATE THIS GUARANTEE AS TO SUCH ENTITY OR AS TO
ANY OF THE OTHER GUARANTORS.
15.
CONSTRUCTION.
(A)
ALL REFERENCES TO THE TERM "GUARANTORS" WHEREVER USED HEREIN SHALL
MEAN EACH AND ALL