OF THE PROPERTY, WHETHER OR
NOT PURSUANT TO A FORECLOSURE SALE, A DEED IN LIEU OF FORECLOSURE, A TRANSFER
THROUGH BANKRUPTCY, OR OTHERWISE.
8.
GUARANTOR ACKNOWLEDGES THAT THIS
GUARANTY AND GUARANTOR'S OBLIGATION ARE AND SHALL AT ALL TIMES CONTINUE TO BE
ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE IN ALL RESPECTS, AND SHALL AT ALL TIMES
BE VALID AND ENFORCEABLE IRRESPECTIVE OF ANY OTHER AGREEMENT OR CIRCUMSTANCES OF
ANY NATURE WHATSOEVER THAT MIGHT OTHERWISE CONSTITUTE A DEFENSE TO THIS GUARANTY
OR THE OBLIGATIONS OF ANY OTHER PERSON OR PARTY (INCLUDING, WITHOUT LIMITATION,
BORROWER OR ANY OTHER GUARANTOR) RELATING TO THIS GUARANTY OR THE OBLIGATIONS OF
GUARANTOR HEREUNDER.
9.
GUARANTOR AGREES THAT IF AT ANY TIME
ALL OR ANY PART OF ANY PAYMENT AT ANY TIME RECEIVED BY AGENT FROM BORROWER OR
GUARANTOR UNDER OR WITH RESPECT TO THIS AGREEMENT IS OR MUST BE RESCINDED OR
RETURNED BY AGENT FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE
INSOLVENCY, BANKRUPTCY OR REORGANIZATION OF BORROWER OR GUARANTOR), THEN
GUARANTOR'S OBLIGATION HEREUNDER SHALL, TO THE EXTENT OF THE PAYMENT RESCINDED
OR RETURNED, BE DEEMED TO HAVE CONTINUED IN EXISTENCE NOTWITHSTANDING SUCH
PREVIOUS RECEIPT BY AGENT, AND GUARANTOR'S OBLIGATION HEREUNDER SHALL CONTINUE
TO BE EFFECTIVE OR REINSTATED, AS THE CASE MAY BE, AS TO SUCH PAYMENT, AS THOUGH
SUCH PREVIOUS PAYMENT TO AGENT HAD NEVER BEEN MADE,
10.
GUARANTOR (A) SHALL HAVE NO RIGHT OF
SUBROGATION AGAINST BORROWER BY REASON OF ANY PAYMENTS OR ACTS OF PERFORMANCE BY
GUARANTOR IN COMPLIANCE WITH THE OBLIGATIONS OF GUARANTOR HEREUNDER; (B) HEREBY
WAIVES ANY RIGHT TO ENFORCE ANY REMEDY THAT GUARANTOR NOW OR HEREAFTER SHALL
HAVE AGAINST BORROWER BY REASON OF ANY ONE OR MORE PAYMENTS OR ACTS OF
PERFORMANCE IN COMPLIANCE WITH THE OBLIGATIONS OF GUARANTOR HEREUNDER; (C) SHALL
SUBORDINATE ANY LIABILITY OR INDEBTEDNESS OF BORROWER NOW OR HEREAFTER HELD BY
GUARANTOR OR ANY AFFILIATE OF GUARANTOR TO THE OBLIGATIONS OF BORROWER UNDER THE
LOAN DOCUMENTS; AND (D) SHALL NOT FILE, ASSERT OR RECEIVE PAYMENT ON ANY CLAIM
WHETHER NOW EXISTING OR HEREAFTER ARISING, AGAINST BORROWER IN THE EVENT OF THE
COMMENCEMENT OF A CASE BY OR AGAINST BORROWER UNDER FEDERAL OR STATE INSOLVENCY
LAWS.
11.
GUARANTOR REPRESENTS AND WARRANTS TO AGENT,
WITH THE KNOWLEDGE THAT AGENT IS RELYING UPON THE SAME, AS FOLLOWS:
(A)
GUARANTOR IS SOLVENT AND HAS THE LEGAL
RIGHT TO ENTER INTO THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS UNDER THE
TERMS HEREOF;
(B)
TO THE BEST OF GUARANTOR'S KNOWLEDGE, THERE
IS NO ACTION, SUIT, PROCEEDING OR INVESTIGATION PENDING OR THREATENED AGAINST OR
AFFECTING GUARANTOR AT LAW, IN EQUITY, IN
8
ADMIRALTY OR BEFORE ANY ARBITRATOR OR ANY GOVERNMENTAL DEPARTMENT, COMMISSION,
BOARD, BUREAU, AGENCY OR INSTRUMENTALITY (DOMESTIC OR FOREIGN) THAT IS LIKELY TO
RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE PROPERTY, ASSETS OR CONDITION
(FINANCIAL OR OTHERWISE) OF GUARANTOR OR THAT IS LIKELY TO IMPAIR MATERIALLY THE
ABILITY OF GUARANTOR TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT;
(C)
GUARANTOR (I) IS A DULY AND SOLELY
ORGANIZED AND VALIDLY EXISTING CORPORATION IN GOOD STANDING UNDER