WITHOUT LIMITATION, BUYER'S TIMELY PAYMENT AND/OR
DISCHARGE OF THE ASSUMED LIABILITIES (AS DEFINED IN THE ASSET PURCHASE
AGREEMENT) AND BUYER'S TIMELY PERFORMANCE OF ITS COVENANTS TO SELLER UNDER EACH
OF THE OTHER TRANSACTION AGREEMENTS; AND
(C)
THE TIMELY SATISFACTION OF BUYER'S OBLIGATIONS UNDER THE
INDEMNIFICATION PROVISIONS OF THE ASSET PURCHASE AGREEMENT.
IN ALL CASES SUBJECT TO THE TERMS OF THE ASSET PURCHASE AGREEMENT
(COLLECTIVELY, THE "OBLIGATIONS").
THIS GUARANTY, AND THE COVENANTS AND WAIVERS
CONTAINED HEREIN, WILL REMAIN IN EFFECT UNTIL ALL OBLIGATIONS HAVE BEEN
SATISFIED.
2.
IN THE EVENT OF ANY DEFAULT BY BUYER IN PERFORMANCE OF THE
OBLIGATIONS, AS AFORESAID, GUARANTOR AGREES, ON DEMAND BY SELLER IN THE MANNER
PROVIDED BELOW IN SECTION 3, TO PERFORM ALL THE OBLIGATIONS AS ARE THEN OR
THEREAFTER TO BE PERFORMED UNDER THE TERMS OF THE TRANSACTION AGREEMENTS.
THE
PARTIES AGREE THAT (A) GUARANTOR'S OBLIGATIONS UNDER THIS GUARANTY SHALL BE
SUBJECT TO THE LIMITATIONS, EXCLUSIONS AND EXCULPATIONS OF LIABILITY SET FORTH
IN THE TRANSACTION AGREEMENTS INCLUDING WITH RESPECT TO THE NOTE AND THE
SUBORDINATION PROVISIONS CONTAINED THEREIN, (B) EXCEPT AS PROVIDED SECTION 6,
BELOW, GUARANTOR MAY ASSERT ANY AND ALL DEFENSES, SET-OFFS, OR COUNTERCLAIMS OF
ANY KIND AVAILABLE TO BUYER SO AS TO DENY PAYMENT RELATED TO THIS GUARANTY
INCLUDING, WITHOUT LIMITATION, ANY SUCH RIGHTS ACQUIRED BY GUARANTOR THROUGH
SUBROGATION, ASSIGNMENT, OR OTHERWISE AND (C) THE OBLIGATIONS OF GUARANTOR
HEREUNDER ARE DEPENDENT UPON SELLER'S PERFORMANCE OF ITS OBLIGATIONS UNDER THE
TRANSACTION AGREEMENTS.
3.
SELLER SHALL MAKE ITS DEMAND FOR PAYMENT HEREUNDER BY DELIVERING
TO GUARANTOR A WRITTEN NOTICE WHICH: (I) STATES THAT IT IS A DEMAND REQUIRED
UNDER THIS GUARANTY FOR PAYMENT OF ONE OR MORE OF THE OBLIGATIONS, (II) SETS
FORTH THE AMOUNT AND THE BASIS FOR SUCH DEMAND, AND (III) IS SIGNED BY AN
AUTHORIZED OFFICER OF SELLER.
SUBJECT TO THE ASSERTION OF ANY RIGHTS IT HAS AS
REFERENCED IN SECTION 2, GUARANTOR SHALL MAKE PAYMENT TO SELLER OF THE AMOUNT
SPECIFIED IN THE WRITTEN DEMAND REFERENCED IN THE PRECEDING SENTENCE IN
IMMEDIATELY AVAILABLE FUNDS NOT LATER THAN THIRTY (30) DAYS AFTER THE DELIVERY
OF THAT WRITTEN DEMAND.
4.
GUARANTOR DOES HEREBY (A) WAIVE NOTICE OF ACCEPTANCE OF THIS
GUARANTY BY SELLER; (B) WAIVE ANY NOTICES OR DEMANDS THAT ARE NOT REQUIRED BY
THIS GUARANTY OR THE TRANSACTION AGREEMENTS; (C) AGREE NOT TO ASSERT ANY
DEFENSE, RIGHT OF SET OFF OR OTHER CLAIM WHICH GUARANTOR MAY HAVE AGAINST BUYER,
TO THE EXTENT SUCH ASSERTION WILL AFFECT OR DELAY THE PAYMENT IN FULL OF ALL
AMOUNTS DUE SELLER UNDER THIS GUARANTY; AND (D) WAIVE PRESENTMENT FOR PAYMENT,
DEMAND FOR PAYMENT, NOTICE OF NONPAYMENT OR DISHONOR, PROTEST AND NOTICE OF
PROTEST, DILIGENCE IN COLLECTION AND ANY AND ALL FORMALITIES WHICH OTHERWISE
MIGHT BE LEGALLY REQUIRED TO CHARGE GUARANTOR WITH LIABILITY.
SELLER SHALL HAVE
2
NO OBLIGATION TO DISCLOSE OR DISCUSS WITH GUARANTOR ITS ASSESSMENT OF THE
FINANCIAL CONDITION OF BUYER.
GUARANTOR AUTHORIZES SELLER, WITHOUT NOTICE TO,
DEMAND OF, OR CONSENT FROM GUARANTOR, AND WITHOUT AFFECTING ITS LIABILITY TO
SELLER HEREUNDER, FROM TIME