AND
LENDERS.
EACH DOMESTIC SUBSIDIARY GUARANTOR AGREES THAT ITS GUARANTY OBLIGATION
HEREUNDER IS A CONTINUING GUARANTY OF PAYMENT AND PERFORMANCE AND NOT OF
COLLECTION, AND THAT ITS OBLIGATION UNDER THIS SECTION 12 SHALL BE ABSOLUTE AND
UNCONDITIONAL, IRRESPECTIVE OF, AND UNAFFECTED BY,
(A)
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
OBLIGOR IS OR MAY BECOME A PARTY;
(B)
THE ABSENCE OF ANY ACTION TO ENFORCE THIS
AGREEMENT (INCLUDING THIS SECTION 12) OR ANY OTHER LOAN DOCUMENT OR THE WAIVER
OR CONSENT BY AGENT AND LENDERS WITH RESPECT TO ANY OF THE PROVISIONS THEREOF.
(C)
THE EXISTENCE, VALUE OR CONDITION OF, OR
FAILURE TO PERFECT ITS LIEN AGAINST, ANY SECURITY FOR THE OBLIGATIONS OR ANY
ACTION, OR THE ABSENCE OF ANY ACTION, BY AGENT AND LENDERS IN RESPECT THEREOF
(INCLUDING THE RELEASE OF ANY SUCH SECURITY);
(D)
THE INSOLVENCY OF ANY OBLIGOR; OR
(E)
ANY OTHER ACTION OR CIRCUMSTANCES WHICH
MIGHT OTHERWISE CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OR DEFENSE OF A SURETY
OR GUARANTOR,
(F)
IT BEING AGREED BY EACH DOMESTIC SUBSIDIARY
GUARANTOR THAT ITS OBLIGATIONS UNDER THIS SECTION 12 SHALL NOT BE DISCHARGED
UNTIL THE PERFORMANCE AND PAYMENT IN FULL OF THE OBLIGATIONS.
EACH DOMESTIC
SUBSIDIARY GUARANTOR SHALL BE REGARDED, AND SHALL BE IN THE SAME POSITION, AS
PRINCIPAL DEBTOR WITH RESPECT TO THE OBLIGATIONS GUARANTEED HEREUNDER.
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12.2
WAIVERS BY DOMESTIC SUBSIDIARY GUARANTORS.
EACH
DOMESTIC SUBSIDIARY GUARANTOR 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 MARSHALL ASSETS OR TO PROCEED IN
RESPECT OF THE OBLIGATIONS GUARANTEED HEREUNDER AGAINST ANY OTHER OBLIGOR, ANY
OTHER PARTY OR AGAINST ANY SECURITY FOR THE PAYMENT AND PERFORMANCE OF THE
OBLIGATIONS BEFORE PROCEEDING AGAINST, OR AS A CONDITION TO PROCEEDING AGAINST,
SUCH DOMESTIC SUBSIDIARY GUARANTOR.
IT IS AGREED AMONG EACH OBLIGOR, AGENT AND
LENDERS THAT THE FOREGOING WAIVERS ARE OF THE ESSENCE OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT, BUT FOR
THE PROVISIONS OF THIS SECTION 12 AND SUCH WAIVERS, AGENT AND LENDERS WOULD
DECLINE TO ENTER INTO THIS AGREEMENT.
12.3
BENEFIT OF GUARANTY.
EACH OBLIGOR AGREES THAT
THE PROVISIONS OF THIS SECTION 12 ARE FOR THE BENEFIT OF AGENT AND LENDERS AND
THEIR RESPECTIVE SUCCESSORS, TRANSFEREES, ENDORSEES AND ASSIGNS, AND NOTHING
HEREIN CONTAINED SHALL IMPAIR, AS BETWEEN ANY OTHER OBLIGOR AND AGENT OR
LENDERS, THE OBLIGATIONS OF SUCH OTHER OBLIGOR UNDER THE LOAN DOCUMENTS.
12.4
WAIVER OF SUBROGATION, ETC.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT, EACH
DOMESTIC SUBSIDIARY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES NOT TO
ASSERT OR ENFORCE (WHETHER BY OR IN A LEGAL OR EQUITABLE PROCEEDING OR
OTHERWISE) ANY AND ALL RIGHTS AT LAW OR IN EQUITY TO SUBROGATION, REIMBURSEMENT,
EXONERATION, CONTRIBUTION, INDEMNIFICATION OR SET OFF AND