PAYMENT OBLIGATIONS OF
BUYERS UNDER THIS AGREEMENT AND THE RELATED AGREEMENTS (OTHER THAN THE HENDERSON
LEASE AGREEMENT), INCLUDING THE PAYMENT OBLIGATIONS CONTEMPLATED UNDER SECTIONS
5(J), 5(K), 6(H) AND 8(C)(VIII) (THE GUARANTEED PAYMENT OBLIGATIONS UNDER THIS
SECTION 9(U), COLLECTIVELY, THE "GUARANTIED OBLIGATIONS").
(II)
GUARANTOR GUARANTEES THAT THE GUARANTIED
OBLIGATIONS WILL BE DULY AND PUNCTUALLY PAID IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT.
IF FOR ANY REASON EITHER BUYER SHALL FAIL OR BE UNABLE DULY AND
PUNCTUALLY TO PAY ANY GUARANTIED OBLIGATION AS AND WHEN THE SAME SHALL BECOME
DUE OR OTHERWISE REQUIRED, THEN GUARANTOR SHALL, SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, FORTHWITH DULY AND PUNCTUALLY PAY SUCH GUARANTIED
OBLIGATION.
GUARANTOR FURTHER AGREES THAT THIS AGREEMENT, TO THE EXTENT IT
REQUIRES THE PAYMENT OF MONEY, CONSTITUTES A GUARANTY OF PAYMENT WHEN DUE AND
NOT OF COLLECTION AND IS IN NO WAY CONDITIONED OR CONTINGENT UPON ANY ATTEMPT TO
COLLECT FROM EITHER BUYER.
GUARANTOR'S LIABILITY UNDER THIS AGREEMENT SHALL BE
ABSOLUTE, UNCONDITIONAL, IRREVOCABLE AND CONTINUING IRRESPECTIVE, WITHOUT
LIMITATION, OF:
(A)
ANY LACK OF VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT AS A RESULT OF THE APPLICATION OF ANY BANKRUPTCY, INSOLVENCY,
MORATORIUM OR OTHER SIMILAR LAWS RELATING TO CREDITORS' RIGHTS AND GENERAL
PRINCIPLES OF EQUITY TO EITHER BUYER;
(B)
ANY MODIFICATION, AMENDMENT, CONSENT,
EXTENSION, FORBEARANCE OR WAIVER OF OR ANY CONSENT TO DEPARTURE FROM THIS
AGREEMENT THAT MAY BE AGREED TO BY EITHER BUYER;
(C)
ANY ACTION OR INACTION BY SELLERS UNDER OR IN
RESPECT OF THIS AGREEMENT, ANY FAILURE, LACK OF DILIGENCE, OMISSION OR DELAY ON
THE PART OF ANY SELLER TO ENFORCE, ASSERT OR EXERCISE ANY RIGHT, POWER OR REMEDY
CONFERRED ON ANY SELLER IN THIS AGREEMENT;
(D)
ANY MERGER OR CONSOLIDATION OF EITHER BUYER,
GUARANTOR OR ANY OF THEIR RESPECTIVE AFFILIATES INTO OR WITH ANY PERSON, OR ANY
SALE, LEASE OR TRANSFER OF ANY OF THE ASSETS OF THE PARTIES OR ANY OTHER PERSON
TO ANY OTHER PERSON;
(E)
ANY CHANGE IN THE OWNERSHIP OF ANY OF THE
PARTIES OR ANY PERSON; OR
107
(F)
ANY OTHER OCCURRENCE, CIRCUMSTANCE,
HAPPENING OR EVENT, WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING AND WHETHER
FORESEEN OR UNFORESEEN, WHICH OTHERWISE MIGHT CONSTITUTE A LEGAL OR EQUITABLE
DEFENSE OR DISCHARGE OF THE LIABILITIES OF A GUARANTOR OR SURETY OR WHICH
OTHERWISE MIGHT LIMIT RECOURSE AGAINST GUARANTOR OR ANY OTHER PERSON.
(III)
GUARANTOR HEREBY UNCONDITIONALLY WAIVES
(A) ANY AND ALL NOTICES, INCLUDING PROMPTNESS, DILIGENCE, NOTICE OF ACCEPTANCE
OF THIS AGREEMENT AND ANY OTHER NOTICE WITH RESPECT TO ANY OF THE GUARANTIED
OBLIGATIONS AND THIS AGREEMENT, (B) ANY PRESENTMENT, DEMAND, PERFORMANCE,
PROTEST, NOTICE OF NON-PAYMENT AS THE SAME PERTAINS TO EITHER BUYER, SUIT OR THE
TAKING OF OTHER ACTION BY ANY SELLER AGAINST, AND ANY OTHER NOTICE TO, GUARANTOR
WITH RESPECT TO ANY OF THE GUARANTIED OBLIGATIONS, (C) ANY RIGHT TO REQUIRE ANY
SELLER TO PROCEED AGAINST EITHER BUYER OR TO EXHAUST ANY SECURITY HELD BY ANY
SELLER OR TO PURSUE ANY OTHER REMEDY WITH RESPECT TO ANY OF THE GUARANTIED
OBLIGATIONS, (D) ANY