FOREGOING, (D) ANY ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL LAWS
CONCERNING OR RELATING TO THE PRESENT OR PREVIOUSLY-OWNED OR OPERATED PROPERTIES
OF THE BORROWER, ANY GUARANTOR OR THE OPERATIONS OR BUSINESS, OF THE BORROWER OR
ANY GUARANTOR INCLUDING ANY MATTERS DISCLOSED WITHIN THE CREDIT AGREEMENT, OR
(E) ANY ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL LAWS CONCERNING OR
RELATED TO THE BORROWER'S OR ANY GUARANTOR'S PROPERTIES AND EACH GUARANTOR SHALL
REIMBURSE THE Beneficiaries AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS, UPON DEMAND FOR ANY REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING
REASONABLE OUTSIDE LEGAL FEES) INCURRED IN CONNECTION WITH ANY SUCH
INVESTIGATION, LITIGATION OR OTHER PROCEEDING; AND EXPRESSLY INCLUDING ANY SUCH
LOSSES, LIABILITIES, CLAIMS, DAMAGES, OR EXPENSE INCURRED BY REASON OF THE
PERSON BEING INDEMNIFIED'S OWN NEGLIGENCE, BUT EXCLUDING ANY SUCH LOSSES,
LIABILITIES, CLAIMS, DAMAGES OR EXPENSES THAT IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH INDEMNIFIED PERSON'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
ARTICLE XV.
WAIVER OF JURY TRIAL.
EACH GUARANTOR HEREBY
ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY AND HAS CONSULTED WITH COUNSEL OF
ITS CHOICE, AND HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT, OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE XVI.
ADDITIONAL GUARANTORS.
PURSUANT TO SECTION 6.15 OF THE
CREDIT AGREEMENT, EACH SUBSIDIARY OF THE BORROWER THAT WAS NOT IN EXISTENCE ON
THE DATE OF THE CREDIT AGREEMENT IS REQUIRED TO ENTER INTO THIS GUARANTY AS A
GUARANTOR UPON BECOMING A SUBSIDIARY.
AFTER THE DATE HEREOF, UPON EXECUTION AND
DELIVERY AFTER THE DATE HEREOF BY THE ADMINISTRATIVE AGENT AND SUCH SUBSIDIARY
OF AN INSTRUMENT IN THE FORM OF ANNEX 1, SUCH SUBSIDIARY SHALL BECOME A
GUARANTOR HEREUNDER WITH THE SAME FORCE AND EFFECT AS IF ORIGINALLY NAMED AS A
GUARANTOR HEREIN.
THE EXECUTION AND DELIVERY OF ANY
8
INSTRUMENT ADDING AN ADDITIONAL GUARANTOR AS A PARTY TO THIS GUARANTY SHALL NOT
REQUIRE THE CONSENT OF ANY OTHER GUARANTOR HEREUNDER.
THE RIGHTS AND
OBLIGATIONS OF EACH GUARANTOR HEREUNDER SHALL REMAIN IN FULL FORCE AND EFFECT
NOTWITHSTANDING THE ADDITION OF ANY NEW GUARANTOR AS A PARTY TO THIS GUARANTY.
ARTICLE XVII.
SUBORDINATION AND INTERCREDITOR AGREEMENT.
REFERENCE
IS MADE TO THE SUBORDINATION AND INTERCREDITOR AGREEMENT DATED OF EVEN DATE
HEREWITH (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME, THE "SUBORDINATION AND INTERCREDITOR AGREEMENT"), AMONG UNION BANK OF
CALIFORNIA, N.A., AS SENIOR AGENT, AND UNIONBANCAL EQUITIES, INC., AS
SUBORDINATED AGENT, AND CERTAIN OTHER PERSONS, PARTY OR THAT MAY BECOME PARTY
THERETO FROM TIME TO TIME.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
THIS GUARANTY, THE OBLIGATIONS OF THE GUARANTORS HEREUNDER AND THE RIGHTS AND
REMEDIES OF THE BENEFICIARIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE
SUBORDINATION AND INTERCREDITOR AGREEMENT.
IN THE EVENT OF ANY CONFLICT BETWEEN
THE TERMS OF THE SUBORDINATION AND INTERCREDITOR AGREEMENT AND THIS GUARANTY,
THE TERMS OF THE SUBORDINATION