INCURRED, OR RENEWED, EXTENDED, AMENDED OR WAIVED, IN RELIANCE
UPON THIS GUARANTEE; AND ALL DEALINGS BETWEEN ANY BORROWER, ANY OTHER GUARANTOR
AND THE GUARANTOR, ON THE ONE HAND, AND MLMCI, ON THE OTHER HAND, LIKEWISE SHALL
BE CONCLUSIVELY PRESUMED TO HAVE BEEN HAD OR CONSUMMATED IN RELIANCE UPON THIS
GUARANTEE.
(B)
THE GUARANTOR HEREBY EXPRESSLY WAIVES ALL SET-OFFS AND
COUNTERCLAIMS AND ALL DILIGENCE, PRESENTMENTS, DEMANDS FOR PAYMENT, DEMANDS FOR
PERFORMANCE, NOTICES OF NONPERFORMANCE, PROTESTS, NOTICES OF PROTEST, NOTICES OF
DISHONOR, NOTICES OF ACCEPTANCE OF THIS GUARANTEE, NOTICES OF SALE, NOTICE OF
DEFAULT OR NONPAYMENT TO OR UPON ANY BORROWER OR ANY OTHER GUARANTOR OR THE
GUARANTOR, SURRENDER OR OTHER HANDLING OR DISPOSITION OF ASSETS SUBJECT TO THE
CREDIT AGREEMENT, ANY REQUIREMENT THAT MLMCI EXHAUST ANY RIGHT, POWER OR REMEDY
OR TAKE ANY ACTION AGAINST ANY BORROWER OR ANY OTHER GUARANTOR OR AGAINST ANY
ASSETS SUBJECT TO THE CREDIT AGREEMENT AND OTHER FORMALITIES OF ANY KIND.
5
(C)
THE GUARANTOR UNDERSTANDS AND AGREES THAT THIS GUARANTEE SHALL BE
CONSTRUED AS A CONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTEE OF PAYMENT
WITHOUT REGARD TO (A) THE VALIDITY, REGULARITY OR ENFORCEABILITY OF THE CREDIT
AGREEMENT, ANY OF THE OBLIGATIONS OR ANY OTHER COLLATERAL SECURITY THEREFOR OR
GUARANTEE OR RIGHT OF OFFSET WITH RESPECT THERETO AT ANY TIME OR FROM TIME TO
TIME HELD BY MLMCI, (B) 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 ANY BORROWER OR ANY OTHER GUARANTOR AGAINST MLMCI, OR (C) ANY OTHER
CIRCUMSTANCE WHATSOEVER (WITH OR WITHOUT NOTICE TO OR KNOWLEDGE OF ANY BORROWER
OR ANY OTHER GUARANTOR OR THE GUARANTOR) WHICH CONSTITUTES, OR MIGHT BE
CONSTRUED TO CONSTITUTE, AN EQUITABLE OR LEGAL DISCHARGE OF SUCH BORROWER OR ANY
OTHER GUARANTOR FROM THE OBLIGATIONS, OR OF THE GUARANTOR FROM THIS GUARANTEE,
IN BANKRUPTCY OR IN ANY OTHER INSTANCE.
(D)
WHEN PURSUING ITS RIGHTS AND REMEDIES HEREUNDER AGAINST THE
GUARANTOR, MLMCI MAY, BUT SHALL BE UNDER NO OBLIGATION TO, PURSUE SUCH RIGHTS
AND REMEDIES AS IT MAY HAVE AGAINST ANY BORROWER 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 MLMCI TO PURSUE SUCH OTHER RIGHTS OR
REMEDIES OR TO COLLECT ANY PAYMENTS FROM ANY BORROWER 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 ANY BORROWER OR ANY SUCH OTHER PERSON OR
ANY SUCH 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 MLMCI AGAINST THE GUARANTOR.
(E)
THIS GUARANTEE SHALL REMAIN IN FULL FORCE AND EFFECT AND BE
BINDING IN ACCORDANCE WITH AND TO THE EXTENT OF ITS TERMS UPON THE GUARANTOR AND
THE SUCCESSORS AND ASSIGNS THEREOF, AND