OF PAYMENT THEREOF, AND IRRESPECTIVE OF ANY OTHER CIRCUMSTANCE
THAT MIGHT AFFECT THE LIABILITY OR CONSTITUTE A DISCHARGE OR DEFENSE OF A SURETY
OR GUARANTOR (EXCEPT WITH REGARD TO THE RIGHTS OF COUNTERCLAIM, SET-OFF,
DEDUCTION OR DEFENSE EXPLICITLY SET FORTH HEREIN), ALL OF WHICH ARE HEREBY
WAIVED.
SECTION 8.
REPRESENTATIONS OF GUARANTOR.
The Guarantor represents to the Creditor that after giving effect to this
Guaranty and the transactions contemplated by the agreements evidencing the
Obligations (and after taking into account all recoveries Creditor is likely to
realize from the Debtor on the Debtor's obligations to Creditor): (a) the
aggregate value of all of the assets and properties of the Guarantor, at a fair
valuation, will be greater than the total amount which the Guarantor is likely
to be actually required to pay on claims concerning the Obligations, including
contingent claims; (b) the Guarantor has (and has no reason to believe that it
will not have) sufficient capital for the conduct of its business; and (c) the
Guarantor does not intend to incur, and does not believe that it has incurred,
debts beyond its ability to pay as they mature.
SECTION 9.
SUBROGATION, REIMBURSEMENT, ETC.
Subject to the provisions of the Stock Purchase Agreement, no party liable under
this Guaranty shall be entitled to any rights of subrogation, reimbursement,
indemnity or contribution or recourse to any collateral, or as against any other
party, until the Creditor or any successor to the Creditor's rights hereunder
shall have been paid or satisfied in full on all Obligations.
SECTION 10.
TERM AND TERMINATION.
THIS GUARANTY IS A CONTINUING GUARANTY WHICH SHALL REMAIN EFFECTIVE WITH RESPECT
TO THE GUARANTOR UNTIL THE EARLIER OF: (I) THE DATE UPON WHICH THERE ARE NO
LONGER ANY OBLIGATIONS OF THE DEBTOR TO THE CREDITOR AND NO LONGER IN FORCE ANY
AGREEMENTS BETWEEN THEM WHICH CAN GIVE RISE TO AN OBLI­GATION; AND (II) THE DATE
THAT THE CREDITOR INFORMS THE GUARANTOR IN WRITING THAT THE GUARANTOR'S
OBLIGATIONS UNDER THIS GUARANTY ARE RELEASED.
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SECTION 11.
MISCELLANEOUS.
(A)
ALL NOTICES UNDER THIS GUARANTY SHALL BE IN WRITING AND GIVEN
PURSUANT TO THE TERMS OF SECTION 11.13 OF THE STOCK PURCHASE AGREEMENT.
(B)
THIS GUARANTY IS INTENDED TO TAKE EFFECT AS AN INSTRU­MENT UNDER
SEAL AND SHALL INURE TO THE BENEFIT OF THE CREDITOR AND ITS SUCCESSORS AND
ASSIGNS.
IT SHALL NOT BE EFFECT­ED BY ANY CHANGE IN THE LEGAL FORM OF THE
GUARANTOR OR THE DEBTOR OR THE MANNER OF THE GUARANTOR'S OR THE DEBTOR'S DOING
BUSINESS, WHETHER BY REINCORPORATION, CONSOLIDATION, MERGER, PARTNERSHIP
FORMATION, CHANGE IN MEMBERSHIP OR OTHERWISE.
(c)
THE GUARANTOR AND THE CREDITOR EACH ACKNOWLEDGE THAT ANY DISPUTE OR
CONTROVERSY BETWEEN THE GUARANTOR AND THE CREDITOR WOULD BE BASED ON DIFFICULT
AND COMPLEX ISSUES OF LAW AND FACT.
ACCORDINGLY, THE GUARANTOR AND THE CREDITOR
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT MAY BE COMMENCED BY
OR AGAINST THE GUARANTOR OR CREDITOR ARISING OUT OF THIS GUARANTY.
(d)
THE GUARANTOR AND THE CREDITOR HEREBY AGREE