NOR ANY PROVISION
HEREOF SHALL BE AMENDED, MODIFIED, WAIVED OR DISCHARGED ORALLY OR BY COURSE OF
CONDUCT, BUT ONLY BY A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED OFFICER OF
AGENT AND BY THE GUARANTORS.
AGENT SHALL NOT BY ANY ACT, DELAY, OMISSION OR
OTHERWISE BE DEEMED TO HAVE EXPRESSLY OR IMPLIEDLY WAIVED ANY OF ITS RIGHTS,
POWERS AND/OR REMEDIES UNLESS SUCH WAIVER SHALL BE IN WRITING AND SIGNED BY AN
AUTHORIZED OFFICER OF AGENT.
ANY SUCH WAIVER SHALL BE ENFORCEABLE ONLY TO THE
EXTENT SPECIFICALLY SET FORTH THEREIN.
A WAIVER BY AGENT OF ANY RIGHT, POWER
AND/OR REMEDY ON ANY ONE OCCASION SHALL NOT BE CONSTRUED AS A BAR TO OR WAIVER
OF ANY SUCH RIGHT, POWER AND/OR REMEDY WHICH AGENT WOULD OTHERWISE HAVE ON ANY
FUTURE OCCASION, WHETHER SIMILAR IN KIND OR OTHERWISE.
9.
CORPORATE EXISTENCE, POWER AND AUTHORITY.
EACH GUARANTOR IS A
CORPORATION DULY ORGANIZED AND IN GOOD STANDING UNDER THE LAWS OF ITS STATE OR
OTHER JURISDICTION OF INCORPORATION AND IS DULY QUALIFIED AS A FOREIGN
CORPORATION AND IN GOOD STANDING IN ALL STATES OR OTHER JURISDICTIONS WHERE THE
NATURE AND EXTENT OF THE BUSINESS TRANSACTED BY IT OR THE OWNERSHIP OF ASSETS
MAKES SUCH QUALIFICATION NECESSARY, EXCEPT FOR THOSE JURISDICTIONS IN WHICH THE
FAILURE TO SO QUALIFY WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE FINANCIAL
CONDITION, RESULTS OF OPERATION OR BUSINESSES OF ANY GUARANTOR OR THE RIGHTS OF
AGENT HEREUNDER OR UNDER ANY OF THE OTHER FINANCING AGREEMENTS.
THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS GUARANTEE IS WITHIN THE CORPORATE POWERS OF
EACH GUARANTOR, HAVE BEEN DULY AUTHORIZED AND ARE NOT IN CONTRAVENTION OF LAW OR
THE TERMS OF THE CERTIFICATES OF INCORPORATION, BY LAWS, OR OTHER ORGANIZATIONAL
DOCUMENTATION OF ANY GUARANTOR, OR ANY INDENTURE, AGREEMENT OR UNDERTAKING TO
WHICH ANY GUARANTOR IS A PARTY OR BY WHICH ANY GUARANTOR OR ITS PROPERTY ARE
BOUND.
THIS GUARANTEE CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF
EACH GUARANTOR ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
ANY ONE GUARANTOR
SIGNING THIS GUARANTEE SHALL BE BOUND HEREBY WHETHER OR NOT ANY OTHER GUARANTOR
OR ANY OTHER PERSON SIGNS THIS GUARANTEE AT ANY TIME.
10.
GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY TRIAL
WAIVER.
(A)
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS GUARANTEE AND
ANY DISPUTE ARISING OUT OF THE RELATIONSHIP BETWEEN ANY GUARANTOR AND AGENT OR
ANY LENDER, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT EXCLUDING ANY PRINCIPLES OF
CONFLICTS OF LAW OR OTHER RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE
LAW OF ANY JURISDICTION OTHER THAN THE LAWS OF THE STATE OF NEW YORK.
(B)
EACH GUARANTOR HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR NEW
YORK COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, WHICHEVER AGENT MAY ELECT, AND WAIVES ANY OBJECTION BASED ON VENUE OR
FORUM NON CONVENIENS