a Lender from the Borrower under any of the Term
Loan Notes, Revolving Notes or other Loan Documents or from any Guarantor under
or with respect to this Guaranty is or must be rescinded or returned by such
Lender for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Borrower or any such Guarantor), then each
Guarantor's obligations hereunder shall, to the extent of the payment rescinded
or returned, be deemed to have continued in existence notwithstanding such
previous receipt by such Lender, and each Guarantor's obligations hereunder
shall continue to be effective or reinstated, as the case may be, as to such
payment, as though such previous payment to the Lender had never been made. In
addition, if any court of competent jurisdiction determines that the incurrence
by any Guarantor of its obligations under this Guaranty or the payment by a
Guarantor of its obligations hereunder is or would be voidable as a fraudulent
transfer or conveyance under Section 548 of the Bankruptcy Code, any analogous
state law, or any other law relating to debtor protection or creditors' rights,
the obligation of that Guarantor hereunder shall automatically be reduced to the
maximum amount (if any) of the obligation that the Guarantor could incur or pay
without such incurrence or payment being subject to avoidance as a fraudulent
transfer or conveyance. Each Guarantor's obligations hereunder shall not exceed
its tangible net worth.
44.
(a)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND HEREBY IRREVOCABLY AND
EXPRESSLY WAIVE ANY OTHER JURISDICTION TO WHICH THEY MAY BE ENTITLED TO BY
VIRTUE OF THEIR PRESENT OR FUTURE DOMICILE OR OTHERWISE.
(b)
JURY TRIAL WAIVER. EACH GUARANTOR AND ALL PERSONS CLAIMING BY, THROUGH OR
UNDER IT, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EACH GUARANTOR IN
CONNECTION HEREWITH OR THEREWITH. EACH GUARANTOR AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER IT, ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION
7
IS A MATERIAL INDUCEMENT FOR THE AGENT'S ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS
GUARANTY ON BEHALF OF THE LENDERS AND THE LENDERS' ENTERING INTO EACH OTHER LOAN
DOCUMENT.
(c)
MARSHALING. EACH GUARANTOR WAIVES ANY RIGHT OR CLAIM OF RIGHT TO CAUSE A
MARSHALING OF BORROWER'S ASSETS OR TO CAUSE ANY LENDER OR THE ADMINISTRATIVE
AGENT TO PROCEED AGAINST ANY OF THE SECURITY