taken, only with the consent or upon the authorization of
Requisite Lenders or all of Lenders, as is required in such circumstance.
ARTICLE XII
CROSS-GUARANTY; LIMITATIONS ON RECOURSE
SECTION 12.1
CROSS-GUARANTY.
(A)
CROSS-GUARANTY.
EACH BORROWER HEREBY AGREES THAT, EXCEPT SOLELY
TO THE EXTENT THAT A GOVERNMENTAL AUTHORITY HAS DETERMINED THAT COMPLIANCE WITH
THIS SECTION 12.1 WILL REQUIRE APPROVAL OF A GOVERNMENTAL AUTHORITY OR WILL BE
IN CONTRAVENTION OF A LAW, RULE OR REGULATION PROMULGATED BY A GOVERNMENTAL
AUTHORITY AND, NOTWITHSTANDING EACH BORROWERS' EXERCISE OF BEST EFFORTS TO
OBTAIN APPROVAL FROM SUCH GOVERNMENTAL AUTHORITY OR TO OBTAIN A WAIVER IN
RESPECT OF SUCH LAW, RULE OR REGULATION, AS THE CASE MAY BE, THE BORROWERS WERE
UNABLE TO OBTAIN SUCH APPROVAL OR SUCH WAIVER, AS THE CASE MAY BE, SUCH BORROWER
IS JOINTLY AND SEVERALLY LIABLE FOR, AND HEREBY ABSOLUTELY AND UNCONDITIONALLY
GUARANTEES TO AGENT AND LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, THE
FULL AND PROMPT PAYMENT (WHETHER AT STATED MATURITY, BY ACCELERATION OR
OTHERWISE) AND PERFORMANCE OF, THE LOAN AND ALL OTHER OBLIGATIONS OWED OR
HEREAFTER OWING TO AGENT AND LENDERS BY BORROWERS.
EACH BORROWER AGREES THAT
ITS GUARANTY OBLIGATION HEREUNDER IS A CONTINUING GUARANTY OF PAYMENT AND
PERFORMANCE AND NOT OF COLLECTION, THAT ITS OBLIGATIONS UNDER THIS SECTION 12.1
SHALL NOT BE DISCHARGED UNTIL PAYMENT AND PERFORMANCE, IN FULL, OF THE LOAN AND
THE OTHER OBLIGATIONS HAS OCCURRED, AND THAT ITS OBLIGATIONS UNDER THIS SECTION
12.1 SHALL BE ABSOLUTE AND UNCONDITIONAL, IRRESPECTIVE OF, AND UNAFFECTED BY:
(I)
THE GENUINENESS, VALIDITY, REGULARITY, ENFORCEABILITY OR ANY
FUTURE AMENDMENT OF, OR CHANGE IN, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT TO WHICH ANY BORROWER IS OR MAY
BECOME A PARTY;
(II)
THE ABSENCE OF ANY ACTION TO ENFORCE THIS AGREEMENT (INCLUDING
THIS ARTICLE XII) OR ANY OTHER LOAN DOCUMENT OR THE WAIVER OR CONSENT BY AGENT
AND LENDERS WITH RESPECT TO ANY OF THE PROVISIONS THEREOF;
(III)
THE EXISTENCE, VALUE OR CONDITION OF, OR FAILURE TO PERFECT ITS
LIEN AGAINST, ANY SECURITY FOR THE LOAN OR THE OTHER OBLIGATIONS OR ANY ACTION,
OR THE ABSENCE OF ANY ACTION, BY AGENT AND LENDERS IN RESPECT THEREOF (INCLUDING
THE RELEASE OF ANY SUCH SECURITY);
(IV)
THE INSOLVENCY OF ANY BORROWER; OR
(V)
ANY OTHER ACTION OR CIRCUMSTANCES THAT MIGHT OTHERWISE CONSTITUTE
A LEGAL OR EQUITABLE DISCHARGE OR DEFENSE OF A SURETY OR GUARANTOR.
59
Each Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.
(B)
WAIVERS BY BORROWERS.
EACH BORROWER EXPRESSLY WAIVES ALL RIGHTS
IT MAY HAVE NOW OR IN THE FUTURE UNDER ANY STATUTE, OR AT COMMON LAW, OR AT LAW
OR IN EQUITY, OR OTHERWISE, TO COMPEL AGENT OR LENDERS TO MARSHAL ASSETS OR TO
PROCEED IN RESPECT OF THE OBLIGATIONS GUARANTEED HEREUNDER AGAINST ANY OTHER
BORROWER, ANY OTHER PERSON OR AGAINST ANY SECURITY FOR THE PAYMENT AND
PERFORMANCE OF THE OBLIGATIONS BEFORE PROCEEDING AGAINST, OR AS A CONDITION TO
PROCEEDING AGAINST, SUCH