PUNCTUAL PAYMENT IN FULL OF ALL THE FOLLOWING
OBLIGATIONS WHEN THE SAME SHALL BECOME DUE, WHETHER AT STATED MATURITY, BY
REQUIRED PREPAYMENT, DECLARATION, ACCELERATION, DEMAND OR OTHERWISE (INCLUDING
AMOUNTS THAT WOULD BECOME DUE BUT FOR THE OPERATION OF THE AUTOMATIC STAY UNDER
SECTION 362(A) OF THE BANKRUPTCY CODE) (COLLECTIVELY, THE "GUARANTIED
OBLIGATIONS"):
(A)
ANY AND ALL OBLIGATIONS OF THE BORROWER NOW OR HEREAFTER
MADE, INCURRED OR CREATED, WHETHER ABSOLUTE OR CONTINGENT, LIQUIDATED OR
UNLIQUIDATED, WHETHER DUE OR NOT DUE, AND HOWEVER ARISING UNDER OR IN CONNECTION
WITH THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, INCLUDING THOSE ARISING
UNDER SUCCESSIVE BORROWING TRANSACTIONS (IF ANY) UNDER THE CREDIT AGREEMENT
WHICH SHALL EITHER CONTINUE THE OBLIGATIONS OF THE BORROWER OR FROM TIME TO TIME
RENEW THEM AFTER THEY HAVE BEEN SATISFIED AND INCLUDING INTEREST WHICH, BUT FOR
THE FILING OF A PETITION IN BANKRUPTCY WITH RESPECT TO THE BORROWER, WOULD HAVE
ACCRUED ON ANY GUARANTIED OBLIGATIONS, WHETHER OR NOT A CLAIM IS ALLOWED AGAINST
THE BORROWER FOR SUCH INTEREST IN THE RELATED BANKRUPTCY PROCEEDING, INCLUDING
ALL EXTENSIONS AND REFINANCINGS OF THE FOREGOING; AND
(B)
THOSE EXPENSES SET FORTH IN SECTION 2.7 HEREOF.
SECTION 2.2
LIMITATION ON AMOUNT GUARANTIED.
ANYTHING CONTAINED IN
THIS GUARANTY TO THE CONTRARY NOTWITHSTANDING, IF ANY FRAUDULENT TRANSFER LAW
(AS DEFINED BELOW) IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE
APPLICABLE TO THE OBLIGATIONS OF THE GUARANTOR UNDER THIS GUARANTY, SUCH
OBLIGATIONS OF THE GUARANTOR HEREUNDER SHALL BE LIMITED TO A MAXIMUM AGGREGATE
AMOUNT EQUAL TO THE LARGEST AMOUNT THAT WOULD NOT RENDER ITS OBLIGATIONS
HEREUNDER SUBJECT TO AVOIDANCE AS A FRAUDULENT TRANSFER OR CONVEYANCE UNDER
SECTION 548 OF THE BANKRUPTCY CODE OR ANY APPLICABLE PROVISIONS OF COMPARABLE
STATE LAW (COLLECTIVELY, THE "FRAUDULENT TRANSFER LAWS"), IN EACH CASE AFTER
GIVING EFFECT TO ALL OTHER LIABILITIES OF THE GUARANTOR, CONTINGENT OR
OTHERWISE, THAT ARE RELEVANT UNDER THE FRAUDULENT TRANSFER LAWS (SPECIFICALLY
EXCLUDING, HOWEVER, ANY LIABILITIES OF THE GUARANTOR (X) IN RESPECT OF
INTERCOMPANY INDEBTEDNESS TO THE BORROWER OR OTHER AFFILIATES OF THE BORROWER TO
THE EXTENT THAT SUCH INDEBTEDNESS WOULD BE
2
DISCHARGED IN AN AMOUNT EQUAL TO THE AMOUNT PAID BY THE GUARANTOR HEREUNDER AND
(Y) UNDER ANY GUARANTY OF ANY SUBORDINATED INDEBTEDNESS WHICH GUARANTY CONTAINS
A LIMITATION AS TO MAXIMUM AMOUNT SIMILAR TO THAT SET FORTH IN THIS SECTION 2.2,
PURSUANT TO WHICH THE LIABILITY OF THE GUARANTOR HEREUNDER IS INCLUDED IN THE
LIABILITIES TAKEN INTO ACCOUNT IN DETERMINING SUCH MAXIMUM AMOUNT).
SECTION 2.3
PAYMENT BY THE GUARANTOR; APPLICATION OF PAYMENTS.
SUBJECT TO THE PROVISIONS OF SECTION 2.2, THE GUARANTOR HEREBY AGREES, IN
FURTHERANCE OF THE FOREGOING AND NOT IN LIMITATION OF ANY OTHER RIGHT WHICH ANY
BENEFICIARY MAY HAVE AT LAW OR IN EQUITY AGAINST THE GUARANTOR BY VIRTUE HEREOF,
THAT UPON THE FAILURE OF THE BORROWER TO PAY ANY OF THE GUARANTIED OBLIGATIONS
WHEN AND AS THE SAME SHALL BECOME DUE IN ACCORDANCE WITH THE LOAN DOCUMENTS,
WHETHER AT STATED MATURITY, BY REQUIRED PREPAYMENT, DECLARATION, ACCELERATION,
DEMAND OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, AMOUNTS