to be given or made under this Guaranty, addressed to such party
(i) in the case of any Secured Creditor, as provided in the Credit Agreement and
(ii) in the case of each Guarantor, at its address set forth in Schedule I to
this Guaranty.
20.
Each Guarantor hereby agrees that if at any time all or any part of any payment
at any time received by a Secured Creditor from the Borrower under any of the
Revolving Notes or other Loan Documents or from any Guarantor under or with
respect to this Guaranty is or must be rescinded or returned by such Secured
Creditor for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Borrower or any such Guarantor),
then each Guarantor's obligations hereunder shall, to the extent of the payment
rescinded or returned, be deemed to have continued in existence notwithstanding
such previous receipt by such Secured Creditor, and each Guarantor's obligations
hereunder shall continue to be effective or reinstated, as the case may be, as
to such payment, as though such previous payment to the Secured Creditor had
never been made. In addition, if any court of competent jurisdiction determines
that
7
the incurrence by any Guarantor of its obligations under this Guaranty or the
payment by a Guarantor of its obligations hereunder is or would be voidable as a
fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code, any
analogous state law, or any other law relating to debtor protection or
creditors' rights, the obligation of that Guarantor hereunder shall
automatically be reduced to the maximum amount (if any) of the obligation that
the Guarantor could incur or pay without such incurrence or payment being
subject to avoidance as a fraudulent transfer or conveyance. Each Guarantor's
obligations hereunder shall not exceed its tangible net worth.
21. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND HEREBY IRREVOCABLY AND
EXPRESSLY WAIVE ANY OTHER JURISDICTION TO WHICH THEY MAY BE ENTITLED TO BY
VIRTUE OF THEIR PRESENT OR FUTURE DOMICILE OR OTHERWISE.
(b) JURY TRIAL WAIVER. EACH GUARANTOR AND ALL PERSONS CLAIMING BY, THROUGH OR
UNDER IT, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EACH GUARANTOR IN
CONNECTION HEREWITH OR THEREWITH. EACH GUARANTOR AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER IT, ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT