delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, such Guarantor;
NOW, THEREFORE, in consideration of the premises and the agreements herein and
in order to induce the Buyers to perform under the Securities Purchase
Agreement, each Guarantor hereby agrees with the Collateral Agent as follows:
SECTION 1.
DEFINITIONS.
REFERENCE IS HEREBY MADE TO THE SECURITIES PURCHASE
AGREEMENT AND THE "NOTES" (AS DEFINED THEREIN) ISSUED PURSUANT THERETO (AS SUCH
NOTES MAY BE AMENDED, RESTATED, REPLACED OR OTHERWISE MODIFIED FROM TIME TO TIME
IN ACCORDANCE WITH THE TERMS THEREOF, COLLECTIVELY, THE "NOTES") FOR A STATEMENT
OF THE TERMS THEREOF.
ALL TERMS USED IN THIS GUARANTY, WHICH ARE DEFINED IN THE
SECURITY AGREEMENT, THE SECURITIES PURCHASE AGREEMENT OR THE NOTES AND NOT
OTHERWISE DEFINED HEREIN, SHALL HAVE THE SAME MEANINGS HEREIN AS SET FORTH
THEREIN.
SECTION 2.
GUARANTY.
EACH GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY,
JOINTLY AND SEVERALLY, GUARANTEES THE PUNCTUAL PAYMENT, AS AND WHEN DUE AND
PAYABLE, BY STATED MATURITY OR OTHERWISE, OF ALL OBLIGATIONS OF THE PARENT FROM
TIME TO TIME OWING BY IT IN RESPECT OF THE SECURITIES PURCHASE AGREEMENT, THE
NOTES AND THE OTHER "TRANSACTION DOCUMENTS" (AS DEFINED IN THE SECURITIES
PURCHASE AGREEMENT), INCLUDING, WITHOUT LIMITATION, ALL INTEREST THAT ACCRUES
AFTER THE COMMENCEMENT OF ANY INSOLVENCY PROCEEDING OF THE PARENT OR ANY
GUARANTOR, WHETHER OR NOT THE PAYMENT OF SUCH INTEREST IS UNENFORCEABLE OR IS
NOT ALLOWABLE DUE TO THE EXISTENCE OF SUCH INSOLVENCY PROCEEDING), AND ALL FEES,
COMMISSIONS, EXPENSE REIMBURSEMENTS, INDEMNIFICATIONS AND ALL OTHER AMOUNTS DUE
OR TO BECOME DUE UNDER ANY OF THE TRANSACTION DOCUMENTS (SUCH OBLIGATIONS, TO
THE EXTENT NOT PAID BY THE PARENT, BEING THE "GUARANTEED OBLIGATIONS"), AND
AGREES TO PAY ANY AND ALL EXPENSES (INCLUDING REASONABLE COUNSEL FEES AND
EXPENSES) REASONABLY INCURRED BY THE COLLATERAL AGENT AND THE BUYERS IN
ENFORCING ANY RIGHTS UNDER THIS GUARANTY.
WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, EACH GUARANTOR'S LIABILITY HEREUNDER SHALL EXTEND TO ALL AMOUNTS
THAT CONSTITUTE PART OF THE GUARANTEED OBLIGATIONS AND WOULD BE OWED BY THE
PARENT TO THE COLLATERAL AGENT AND THE BUYERS UNDER THE SECURITIES PURCHASE
AGREEMENT AND THE NOTES BUT FOR THE FACT THAT THEY ARE UNENFORCEABLE OR NOT
ALLOWABLE DUE TO THE EXISTENCE OF AN INSOLVENCY PROCEEDING INVOLVING ANY
GUARANTOR OR THE PARENT (EACH, A "TRANSACTION PARTY").
SECTION 3.
GUARANTY ABSOLUTE; CONTINUING GUARANTY; ASSIGNMENTS.
(A)
EACH GUARANTOR, JOINTLY AND SEVERALLY,
GUARANTEES THAT THE GUARANTEED OBLIGATIONS WILL BE PAID STRICTLY IN ACCORDANCE
WITH THE TERMS OF THE TRANSACTION DOCUMENTS, REGARDLESS OF ANY LAW, REGULATION
OR ORDER NOW OR HEREAFTER IN EFFECT IN ANY JURISDICTION AFFECTING ANY OF SUCH
TERMS OR THE RIGHTS OF THE COLLATERAL AGENT OR THE BUYERS WITH RESPECT THERETO.
THE OBLIGATIONS OF EACH GUARANTOR UNDER THIS GUARANTY ARE INDEPENDENT OF THE
GUARANTEED OBLIGATIONS, AND A SEPARATE ACTION OR ACTIONS MAY BE BROUGHT AND
PROSECUTED AGAINST ANY GUARANTOR TO ENFORCE SUCH OBLIGATIONS, IRRESPECTIVE OF
WHETHER ANY ACTION IS BROUGHT AGAINST ANY TRANSACTION PARTY OR WHETHER ANY
TRANSACTION PARTY