OR RIGHT OF OFFSET WITH RESPECT
THERETO AT ANY TIME OR FROM TIME TO TIME HELD BY THE BUYER, (II) ANY DEFENSE,
SET-OFF OR COUNTERCLAIM (OTHER THAN A DEFENSE OF PAYMENT OR PERFORMANCE) WHICH
MAY AT ANY TIME BE AVAILABLE TO OR BE ASSERTED BY THE SELLER AGAINST THE BUYER,
(III) ANY REQUIREMENT THAT THE BUYER EXHAUST ANY RIGHT TO TAKE ANY ACTION
AGAINST THE SELLER OR ANY OTHER PERSON PRIOR TO OR CONTEMPORANEOUSLY WITH
PROCEEDING TO EXERCISE ANY RIGHT AGAINST THE GUARANTOR UNDER THIS GUARANTEE OR
(IV) ANY OTHER CIRCUMSTANCE WHATSOEVER (WITH OR WITHOUT NOTICE TO OR KNOWLEDGE
OF THE SELLER OR THE GUARANTOR) WHICH CONSTITUTES, OR MIGHT BE CONSTRUED TO
CONSTITUTE, AN EQUITABLE OR LEGAL DISCHARGE OF THE SELLER FOR THE OBLIGATIONS OR
OF THE GUARANTOR UNDER THIS GUARANTEE, IN BANKRUPTCY OR IN ANY OTHER INSTANCE.
WHEN PURSUING ITS RIGHTS AND REMEDIES HEREUNDER AGAINST THE GUARANTOR, THE BUYER
MAY, BUT SHALL BE UNDER NO OBLIGATION, TO PURSUE SUCH RIGHTS AND REMEDIES THAT
THE BUYER MAY HAVE AGAINST THE SELLER OR ANY OTHER PERSON OR AGAINST ANY
COLLATERAL SECURITY OR GUARANTEE FOR THE OBLIGATIONS OR ANY RIGHT OF OFFSET WITH
RESPECT THERETO, AND ANY FAILURE BY THE BUYER TO PURSUE SUCH OTHER RIGHTS OR
REMEDIES OR TO COLLECT ANY PAYMENTS FROM THE SELLER OR ANY SUCH OTHER PERSON OR
TO REALIZE UPON ANY SUCH COLLATERAL SECURITY OR GUARANTEE OR TO EXERCISE ANY
SUCH RIGHT OF OFFSET, OR ANY RELEASE OF THE SELLER OR ANY SUCH OTHER PERSON OR
ANY SUCH
3
COLLATERAL SECURITY, GUARANTEE OR RIGHT OF OFFSET, SHALL NOT RELIEVE THE
GUARANTOR OF ANY LIABILITY HEREUNDER, AND SHALL NOT IMPAIR OR AFFECT THE RIGHTS
AND REMEDIES, WHETHER EXPRESS, IMPLIED OR AVAILABLE AS A MATTER OF LAW, OF THE
BUYER AGAINST THE GUARANTOR.
THIS GUARANTEE SHALL REMAIN IN FULL FORCE AND
EFFECT AND BE BINDING IN ACCORDANCE WITH AND TO THE EXTENT OF ITS TERMS UPON
EACH GUARANTOR AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS THEREOF, AND SHALL
INURE TO THE BENEFIT OF THE BUYER, AND ITS RESPECTIVE SUCCESSORS, ENDORSEES,
TRANSFEREES AND ASSIGNS, UNTIL ALL THE OBLIGATIONS AND THE OBLIGATIONS OF THE
GUARANTOR UNDER THIS GUARANTEE SHALL HAVE BEEN SATISFIED BY PAYMENT IN FULL,
NOTWITHSTANDING THAT FROM TIME TO TIME DURING THE TERM OF THE GOVERNING
AGREEMENTS THE SELLER MAY BE FREE FROM ANY OBLIGATIONS.
(B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE GUARANTOR
HEREBY AGREES, ACKNOWLEDGES, AND REPRESENTS AND WARRANTS TO THE BUYER AS
FOLLOWS:
(I)
THE GUARANTOR HEREBY WAIVES ANY DEFENSE ARISING BY REASON OF, AND
ANY AND ALL RIGHT TO ASSERT AGAINST THE BUYER ANY CLAIM OR DEFENSE BASED UPON,
AN ELECTION OF REMEDIES BY THE BUYER WHICH IN ANY MANNER IMPAIRS, AFFECTS,
REDUCES, RELEASES, DESTROYS AND/OR EXTINGUISHES THE GUARANTOR'S SUBROGATION
RIGHTS, RIGHTS TO PROCEED AGAINST THE SELLER, OR ANY OTHER GUARANTOR FOR
REIMBURSEMENT OR CONTRIBUTION, AND/OR ANY OTHER RIGHTS OF THE GUARANTOR TO
PROCEED AGAINST THE SELLER AGAINST ANY OTHER GUARANTOR, OR AGAINST ANY OTHER
PERSON OR SECURITY.
(II)
THE GUARANTOR IS PRESENTLY INFORMED