OF, OR NOTICE (EXCEPT AS SHALL BE REQUIRED BY APPLICABLE
STATUTE AND CANNOT BE WAIVED) TO, THE GUARANTOR, AND WITHOUT INCURRING
RESPONSIBILITY TO THE GUARANTOR OR IMPAIRING OR RELEASING THE OBLIGATIONS OF THE
GUARANTOR HEREUNDER, APPLY ANY SUMS BY WHOMSOEVER PAID OR HOWSOEVER REALIZED TO
ANY GUARANTEED OBLIGATION REGARDLESS OF WHAT GUARANTEED OBLIGATIONS REMAIN
UNPAID.
5
II)
THIS GUARANTY SHALL CONTINUE TO BE
EFFECTIVE OR BE REINSTATED, AS THE CASE MAY BE, IF CLAIM IS EVER MADE UPON THE
AGENT FOR REPAYMENT OR RECOVERY OF ANY AMOUNT OR AMOUNTS RECEIVED BY THE AGENT
IN PAYMENT OR ON ACCOUNT OF ANY OF THE GUARANTEED OBLIGATIONS AS A RESULT OF
LAWS RELATING TO PREFERENCES, FRAUDULENT TRANSFERS AND FRAUDULENT CONVEYANCES,
AND THE AGENT REPAYS ALL OR PART OF SAID AMOUNT BY REASON OF ANY JUDGMENT,
DECREE OR ORDER OF ANY COURT OR ADMINISTRATIVE BODY HAVING JURISDICTION OVER THE
AGENT OR ITS PROPERTY, OR ANY SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIM
EFFECTED BY THE AGENT WITH ANY SUCH CLAIMANT (INCLUDING THE BORROWER).
IN SUCH
EVENT THE GUARANTOR AGREES THAT ANY SUCH JUDGMENT, DECREE, ORDER, SETTLEMENT OR
COMPROMISE SHALL BE BINDING UPON THE GUARANTOR, NOTWITHSTANDING ANY REVOCATION
HEREOF OR THE CANCELLATION OF ANY NOTE (INCLUDING THE NOTE) OR OTHER INSTRUMENT
EVIDENCING ANY GUARANTEED OBLIGATION, AND THE GUARANTOR SHALL BE AND REMAIN
LIABLE TO THE AGENT HEREUNDER FOR THE AMOUNT SO REPAID OR RECOVERED TO THE SAME
EXTENT AS IF SUCH AMOUNT HAD NEVER ORIGINALLY BEEN RECEIVED BY THE AGENT.
4.
CONTINUING GUARANTY. THIS GUARANTY IS A
CONTINUING ONE AND SHALL (I) REMAIN IN FULL FORCE AND EFFECT UNTIL THE
INDEFEASIBLE PAYMENT AND SATISFACTION IN FULL OF THE GUARANTEED OBLIGATIONS,
(II) BE BINDING UPON THE GUARANTOR, ITS SUCCESSORS AND ASSIGNS, AND (III) INURE
TO THE BENEFIT OF, AND BE ENFORCEABLE BY, THE AGENT AND THE LENDERS. ALL
OBLIGATIONS TO WHICH THIS GUARANTY APPLIES SHALL BE CONCLUSIVELY PRESUMED TO
HAVE BEEN CREATED IN RELIANCE HEREON.
5.
REPRESENTATIONS, WARRANTIES AND
COVENANTS. THE GUARANTOR HEREBY REPRESENTS, WARRANTS AND COVENANTS TO AND WITH
THE AGENT AND THE LENDERS THAT:
A.
THE GUARANTOR HAS THE POWER TO EXECUTE
AND DELIVER THIS GUARANTY AND TO INCUR AND PERFORM ITS OBLIGATIONS HEREUNDER;
B.
THE GUARANTOR HAS DULY TAKEN ALL
NECESSARY ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
GUARANTY AND TO INCUR AND PERFORM ITS OBLIGATIONS HEREUNDER;
C.
NO CONSENT, APPROVAL, AUTHORIZATION OR
OTHER ACTION BY, AND NO NOTICE TO OR OF, OR DECLARATION OR FILING WITH, ANY
GOVERNMENTAL OR OTHER PUBLIC BODY, OR ANY OTHER PERSON, IS REQUIRED FOR THE DUE
AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE BY THE GUARANTOR OF THIS
GUARANTY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY;
6
D.
THE EXECUTION, DELIVERY AND PERFORMANCE
BY THE GUARANTOR OF THIS GUARANTY DOES NOT AND WILL NOT, WITH THE PASSAGE OF
TIME OR THE GIVING OF NOTICE OR BOTH, VIOLATE OR OTHERWISE CONFLICT WITH ANY
TERM OR PROVISION OF ANY MATERIAL AGREEMENT, INSTRUMENT, JUDGMENT, DECREE, ORDER
OR ANY STATUTE, RULE OR GOVERNMENTAL REGULATION APPLICABLE TO THE