BY SELLER.
NO
MODIFICATION OR WAIVER OF ANY OF THE PROVISIONS OF THIS GUARANTY SHALL BE
BINDING UPON BUYER, EXCEPT AS EXPRESSLY SET FORTH IN A WRITING DULY SIGNED AND
DELIVERED BY BUYER.
5.
THIS GUARANTY IS A PRESENT AND CONTINUING GUARANTY OF PERFORMANCE
AND PAYMENT AND NOT OF COLLECTION.
THIS GUARANTY IS, EXCEPT AS EXPRESSLY SET
FORTH IN SECTION 2, ABSOLUTE AND UNCONDITIONAL.
GUARANTOR AGREES THAT THIS
GUARANTY MAY BE ENFORCED BY SELLER WITHOUT THE NECESSITY AT ANY TIME OF
RESORTING TO OR EXHAUSTING ANY OTHER SECURITY OR COLLATERAL GIVEN IN CONNECTION
HEREWITH OR WITH THE TRANSACTION AGREEMENTS.
SUBJECT TO SECTION 2, GUARANTOR
HEREBY WAIVES ANY RIGHT TO REQUIRE SELLER TO JOIN BUYER IN ANY ACTION BROUGHT
HEREUNDER OR TO COMMENCE ANY ACTION AGAINST OR OBTAIN ANY JUDGMENT AGAINST
BUYER.
GUARANTOR FURTHER AGREES THAT, SUBJECT TO SECTION 2, NOTHING CONTAINED
HEREIN OR OTHERWISE SHALL PREVENT SELLER FROM PURSUING CONCURRENTLY OR
SUCCESSIVELY ALL RIGHTS AND REMEDIES AVAILABLE TO IT AT LAW AND/OR IN EQUITY OR
UNDER THE TRANSACTION AGREEMENTS, AND THE EXERCISE OF ANY OF ITS RIGHTS OR THE
COMPLETION OF ANY OF ITS REMEDIES SHALL NOT CONSTITUTE A DISCHARGE OF
GUARANTOR'S OBLIGATIONS AS REQUIRED PURSUANT TO THIS GUARANTY, EXCEPT TO THE
EXTENT SUCH REMEDIES CONSTITUTE A DISCHARGE OF BUYER'S OBLIGATIONS UNDER THE
TRANSACTION AGREEMENTS.
6.
NONE OF GUARANTOR'S OBLIGATIONS UNDER THIS GUARANTY OR ANY REMEDY
FOR THE ENFORCEMENT THEREOF SHALL BE IMPAIRED, MODIFIED, CHANGED OR RELEASED IN
ANY MANNER WHATSOEVER BY ANY IMPAIRMENT, MODIFICATION, CHANGE, RELEASE OR
LIMITATION OF THE LIABILITY OF BUYER BY REASON OF THE BANKRUPTCY OF BUYER OR BY
REASON OF ANY CREDITOR OR BANKRUPTCY PROCEEDING INSTITUTED BY OR AGAINST BUYER.
7.
IN THE EVENT SELLER SHALL ASSIGN ITS RIGHTS UNDER THE TRANSACTION
AGREEMENTS (IF PERMITTED PURSUANT TO THE TERMS THEREOF) OR THIS GUARANTY TO ANY
THIRD
3
PARTY, GUARANTOR WILL ACCORD FULL RECOGNITION THERETO AND AGREE THAT ALL RIGHTS
AND REMEDIES OF SELLER OR SUCH ASSIGNEE SHALL BE ENFORCEABLE AGAINST GUARANTOR
BY SUCH ASSIGNEE WITH THE SAME FORCE AND EFFECT AND TO THE SAME EXTENT AS WOULD
HAVE BEEN ENFORCEABLE BY SELLER BUT FOR SUCH ASSIGNMENT.
8.
IF ANY PROVISION OF THIS GUARANTY IS DETERMINED TO BE INVALID OR
NOT FULLY ENFORCEABLE, SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT AFFECT THE
OTHER PROVISIONS OF THIS GUARANTY WHICH SHALL BE ENFORCEABLE TO THE MAXIMUM
EXTENT PERMITTED AT LAW.
9.
ALL NOTICES, REQUESTS, PAYMENTS, INSTRUCTIONS, OR OTHER DOCUMENTS
TO BE GIVEN HEREUNDER SHALL BE IN WRITING, AND SHALL BE DEEMED TO HAVE BEEN DULY
GIVEN IF (I) DELIVERED PERSONALLY (EFFECTIVE UPON DELIVERY), (II) MAILED BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID
(EFFECTIVE FIVE BUSINESS DAYS AFTER DISPATCH), (III) SENT BY A REPUTABLE,
ESTABLISHED COURIER SERVICE THAT GUARANTEES NEXT BUSINESS DAY DELIVERY
(EFFECTIVE THE NEXT BUSINESS DAY), OR (IV) SENT BY FACSIMILE, FOLLOWED WITHIN 24
HOURS BY CONFIRMATION BY ONE OF THE FOREGOING METHODS (EFFECTIVE UPON THE FIRST
BUSINESS DAY AFTER RECEIPT OF THE FACSIMILE IN COMPLETE, READABLE FORM).
NOTICES TO EACH PARTY SHALL BE