AND CURRENT
FINANCIAL STATEMENTS OF GUARANTOR (AUDITED FOR THE ANNUAL FINANCIAL STATEMENTS
AND UNAUDITED FOR THE FINANCIAL STATEMENTS OF THE FIRST THREE CALENDAR
QUARTERS), IN FORM AND SCOPE REASONABLY SATISFACTORY TO AGENT; (B) COPIES OF
GUARANTOR'S TAX RETURNS; AND (C) SUCH OTHER FINANCIAL INFORMATION RELATING TO
GUARANTOR AS
MAY REASONABLY REQUEST.
13.
GUARANTOR AND AGENT ACKNOWLEDGE AND AGREE
THAT THIS AGREEMENT IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT OF
COLLECTION AND ENFORCEMENT IN RESPECT OF ANY OF THE GUARANTOR'S OBLIGATION. NO
EXCULPATORY LANGUAGE CONTAINED IN ANY OF THE OTHER LOAN DOCUMENTS SHALL IN ANY
EVENT OR UNDER ANY CIRCUMSTANCES MODIFY, QUALIFY OR AFFECT THE PERSONAL RECOURSE
OBLIGATIONS AND LIABILITIES OF GUARANTOR HEREUNDER.
14.
AGENT MAY FREELY ASSIGN ANY OR ALL OF ITS
RIGHTS UNDER THIS AGREEMENT, BUT ANY SUCH ASSIGNMENT SHALL BE MADE ONLY TO THE
SUBSEQUENT HOLDER OF THE NOTE AND NO SUCH ASSIGNMENT SHALL INCREASE GUARANTOR'S
OBLIGATION OR DIMINISH ITS RIGHTS HEREUNDER. IN THE EVENT OF ANY SUCH
ASSIGNMENT, AGENT SHALL GIVE GUARANTOR PROMPT NOTICE OF SAME, BUT THE CONSENT OF
GUARANTOR SHALL NOT BE REQUIRED FOR ANY SUCH ASSIGNMENT AND FAILURE TO GIVE SUCH
NOTICE SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY SUCH ASSIGNMENT OR
SUBJECT AGENT TO ANY LIABILITY AND GUARANTOR SHALL CONTINUE TO REMAIN BOUND BY
AND OBLIGATED TO PERFORM UNDER AND WITH RESPECT TO THIS AGREEMENT. GUARANTOR
SHALL NOT ASSIGN ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR
CONSENT OF THE AGENT.
15.
THE REPRESENTATIONS, WARRANTIES AND
OBLIGATIONS OF GUARANTOR SET FORTH IN THIS AGREEMENT SHALL SURVIVE UNTIL THIS
AGREEMENT SHALL TERMINATE IN ACCORDANCE WITH THE TERMS HEREOF.
16.
THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT
BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AGREEMENTS RELATING TO SUCH SUBJECT MATTER AND MAY NOT BE
MODIFIED, AMENDED, SUPPLEMENTED OR DISCHARGED EXCEPT BY A WRITTEN AGREEMENT
SIGNED BY GUARANTOR AND AGENT. THIS AGREEMENT ALSO MAY BE DISCHARGED BY FULL
PERFORMANCE OF THE GUARANTOR'S OBLIGATION IN ACCORDANCE WITH THE TERMS HEREOF,
OR AS OTHERWISE PROVIDED HEREIN.
17.
IF ALL OR ANY PORTION OF ANY PROVISION
CONTAINED IN THIS AGREEMENT SHALL BE DETERMINED TO BE INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY RESPECT FOR ANY REASON, SUCH PROVISION OR PORTION THEREOF
SHALL BE DEEMED STRICKEN AND SEVERED FROM THIS AGREEMENT AND THE REMAINING
PROVISION AND PORTIONS THEREOF SHALL CONTINUE IN FULL FORCE AND EFFECT.
18.
ALL NOTICES, REQUESTS, DEMANDS AND OTHER
COMMUNICATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE IN WRITING
AND SHALL BE DEEMED TO HAVE BEEN GIVEN OR MADE FOR ALL PURPOSES WHEN DELIVERED
IN PERSON TO THE ADDRESSES SET FORTH BELOW OR THREE (3) BUSINESS DAYS AFTER SAME
IS SENT BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, TO THE FOLLOWING ADDRESSES.
10
If to Guarantor:
The address listed above to the attention of
Marc Holliday and the Office of the General Counsel
With a copy to:
Clifford Chance US LLP
31 West 52nd Street
New York, New York