Operator Security Agreement Page 21
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32protect, insure, or enforce any collateral security; or any modification, substitution,
discharge, impairment, or loss of any collateral security; (vii) any foreclosure or
enforcement of any collateral security; (viii) any transfer of any Obligations or any
evidence thereof; (ix) any order of application of any payments of credits upon
Obligations; (x) any election by Secured Party under §1111(b)(2) of the United States
Bankruptcy Code.
(d)
The Operator waives any and all defenses, claims and discharges of
Borrower, or any other obligor, pertaining to Obligations, except the defense of
discharge by payment in full. Without limiting the generality of the foregoing, the
Operator will not assert, plead or enforce against Secured Party any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res judicata, statute of frauds,
anti-deficiency statute, fraud, incapacity, minority, usury, illegality or unenforceability
which may be available to Borrower or any other Person liable in respect of any
indebtedness, or any setoff available against Secured Party to Borrower or any such
other Person, whether or not on account of a related transaction. The Operator
expressly agrees that the Operator shall be and remain liable, to the extent of the
Collateral, for any deficiency remaining after foreclosure of any security interest
securing the Obligations, whether or not the liability of Borrower or any other obligor
for such deficiency is discharged pursuant to statute or judicial decision.
(e)
The Operator waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing the Obligations. To
the extent of the Collateral, this Agreement constitutes an absolute, unlimited,
unconditional and continuing guaranty of payment, not collection. The Secured Party shall
not be required first to resort for payment of the Obligations to Borrower, or any other
Persons or their properties, or first to enforce, realize upon or exhaust any collateral
security for Obligations, before enforcing this Agreement.
(f)
The liability of the Operator under this Agreement is in addition to and
shall be cumulative with all other liabilities of the Operator to Secured Party as obligor
or otherwise, without any limitation as to amount, and all other liabilities of any other
Person who guarantees all or any portion of the Obligations, unless the instrument or
agreement evidencing or creating such other liability specifically provides to the
contrary.
(g)
This Agreement shall be effective upon delivery to Secured Party,
without further act, condition or acceptance by Secured Party. Any invalidity or
unenforceability of any provision of application of this Agreement shall not affect other
lawful provisions and application hereof, and to this end the provisions of this
Agreement are declared to be severable.
(h)
Operator hereby covenants that this Agreement will not be discharged
except by complete performance of the obligations contained in this Agreement.
Operator waives all setoffs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of, and reliance on, this Agreement. Operator further waives
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