(including, without limitation, the insolvency, bankruptcy
or reorganization of the Borrower or any Guarantor),
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then 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rescinded or returned, be deemed to have continued in existence notwithstanding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 Lender, and 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 Lender had never been made. In
addition, if any court of competent jurisdiction determines that the incurrence
by Guarantor of its obligations under this Guaranty or the payment by 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 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.
20.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. GUARANTOR AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON GUARANTOR IN THE MANNER AND AT THE ADDRESS SPECIFIED FOR NOTICES IN
THIS AGREEMENT. GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
(a)
JURY TRIAL WAIVER. 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 GUARANTOR IN
CONNECTION HEREWITH OR THEREWITH. 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 IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT'S ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS GUARANTY ON
BEHALF OF THE LENDERS AND THE LENDERS' ENTERING INTO EACH OTHER LOAN DOCUMENT.
(b)
MARSHALING. GUARANTOR WAIVES ANY RIGHT OR CLAIM OF RIGHT TO CAUSE A
MARSHALING OF BORROWER'S ASSETS OR TO CAUSE ANY LENDER OR THE ADMINISTRATIVE
AGENT TO PROCEED AGAINST ANY OF THE
7
SECURITY FOR THE LOAN BEFORE PROCEEDING UNDER THIS AGREEMENT AGAINST BORROWER OR
TO PROCEED AGAINST GUARANTOR IN