CONTAINED IN PARAGRAPHS (4) OF SCHEDULE 3.1-A SHALL BE SPECIFICALLY
ENFORCEABLE AGAINST SUCH OBLIGOR, AND THE AGENT AND THE LENDERS SHALL BE
ENTITLED TO OBTAIN INJUNCTIVE RELIEF WITH RESPECT THERETO WITHOUT ANY BOND OR
OTHER SECURITY BEING REQUIRED, AND EACH OBLIGOR HEREBY WAIVES AND AGREES, TO THE
FULLEST EXTENT PERMITTED BY LAW, NOT TO ASSERT AS A DEFENSE AGAINST AN ACTION
FOR SPECIFIC PERFORMANCE OF SUCH COVENANTS THAT (I) SUCH OBLIGOR'S FAILURE TO
PERFORM SUCH COVENANTS WILL NOT CAUSE IRREPARABLE INJURY TO THE AGENT AND THE
LENDERS OR (II) THE AGENT OR THE LENDERS HAVE AN ADEQUATE REMEDY AT LAW IN
RESPECT OF SUCH BREACH.
ARTICLE 12
GUARANTY
Section 12.1
Guaranty; Limitation of Liability.
(A)
EACH GUARANTOR, JOINTLY AND SEVERALLY, HEREBY ABSOLUTELY,
UNCONDITIONALLY AND IRREVOCABLY GUARANTEES THE PUNCTUAL PAYMENT WHEN DUE,
WHETHER AT SCHEDULED MATURITY OR ON ANY DATE OF A REQUIRED PREPAYMENT OR BY
ACCELERATION, DEMAND OR OTHERWISE, OF ALL OBLIGATIONS OF EACH OTHER OBLIGOR NOW
OR HEREAFTER EXISTING UNDER OR IN RESPECT OF THE LOAN DOCUMENTS, WHETHER DIRECT
OR INDIRECT, ABSOLUTE OR CONTINGENT, AND WHETHER FOR PRINCIPAL, INTEREST,
PREMIUMS, FEES, INDEMNITIES, CONTRACT CAUSES OF ACTION, COSTS, EXPENSES OR
OTHERWISE (SUCH OBLIGATIONS BEING THE "GUARANTEED OBLIGATIONS"), AND AGREES TO
PAY ANY AND ALL REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE OUT-OF-POCKET FEES AND EXPENSES OF COUNSEL BUT EXCLUDING
ALLOCATED COSTS OF IN-HOUSE COUNSEL) INCURRED BY THE AGENT OR ANY LENDER IN
ENFORCING ANY RIGHTS UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, EACH GUARANTOR'S LIABILITY SHALL
EXTEND TO ALL AMOUNTS THAT CONSTITUTE PART OF THE GUARANTEED OBLIGATIONS AND
WOULD BE OWED BY ANY OTHER OBLIGOR TO THE AGENT OR ANY LENDER UNDER OR IN
RESPECT OF THE LOAN DOCUMENTS BUT FOR THE FACT THAT THEY ARE UNENFORCEABLE OR
NOT ALLOWABLE DUE TO THE EXISTENCE OF A BANKRUPTCY, REORGANIZATION OR SIMILAR
PROCEEDING INVOLVING SUCH OTHER OBLIGOR.
80
(B)
EACH GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY AGREES THAT IN
THE EVENT ANY PAYMENT SHALL BE REQUIRED TO BE MADE TO THE AGENT OR ANY LENDER
UNDER THIS GUARANTY, SUCH GUARANTOR WILL CONTRIBUTE, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, SUCH AMOUNTS TO EACH OTHER GUARANTOR SO AS TO MAXIMIZE THE
AGGREGATE AMOUNT PAID TO THE AGENT AND THE LENDERS UNDER OR IN RESPECT OF THE
LOAN DOCUMENTS.
Section 12.2
Guaranty Absolute.
Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan 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
Agent or any Lender with respect thereto.
The Obligations of each Guarantor
under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any other Obligor under or in respect of
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any