FACT THAT ANY
COLLATERAL, SECURITY, SECURITY INTEREST OR LIEN CONTEMPLATED OR INTENDED TO BE
GIVEN, CREATED OR GRANTED AS SECURITY FOR THE REPAYMENT OF THE GUARANTEED
OBLIGATIONS, OR ANY PART THEREOF, SHALL NOT BE PROPERLY PERFECTED OR CREATED, OR
SHALL PROVE TO BE UNENFORCEABLE OR SUBORDINATE TO ANY OTHER SECURITY INTEREST OR
LIEN, IT BEING RECOGNIZED AND AGREED BY GUARANTOR THAT GUARANTOR IS NOT ENTERING
INTO THIS GUARANTY IN RELIANCE ON, OR IN CONTEMPLATION OF THE BENEFITS OF, THE
VALIDITY, ENFORCEABILITY, COLLECTIBILITY OR VALUE OF ANY OF THE COLLATERAL FOR
THE GUARANTEED OBLIGATIONS.
2.10
OFFSET.
THE NOTE B, THE GUARANTEED
OBLIGATIONS AND THE LIABILITIES AND OBLIGATIONS OF GUARANTOR TO NOTE B HOLDER
HEREUNDER SHALL NOT BE REDUCED, DISCHARGED OR RELEASED
5
BECAUSE OF OR BY REASON OF ANY EXISTING OR FUTURE RIGHT OF OFFSET, CLAIM OR
DEFENSE OF BORROWER AGAINST LENDER, OR ANY OTHER PARTY, OR AGAINST PAYMENT OF
THE GUARANTEED OBLIGATIONS, WHETHER SUCH RIGHT OF OFFSET, CLAIM OR DEFENSE
ARISES IN CONNECTION WITH THE GUARANTEED OBLIGATIONS (OR THE TRANSACTIONS
CREATING THE GUARANTEED OBLIGATIONS) OR OTHERWISE.
2.11
MERGER. THE REORGANIZATION, MERGER OR CONSOLIDATION
OF BORROWER INTO OR WITH ANY OTHER PERSON.
2.12
PREFERENCE. ANY PAYMENT BY BORROWER TO LENDER IS
HELD TO CONSTITUTE A PREFERENCE UNDER BANKRUPTCY LAWS OR FOR ANY REASON LENDER
IS REQUIRED TO REFUND SUCH PAYMENT OR PAY SUCH AMOUNT TO BORROWER OR SOMEONE
ELSE.
2.13
OTHER ACTIONS TAKEN OR OMITTED. ANY OTHER ACTION
TAKEN OR OMITTED TO BE TAKEN WITH RESPECT TO THE LOAN DOCUMENTS, THE GUARANTEED
OBLIGATIONS, OR THE SECURITY AND COLLATERAL THEREFOR, WHETHER OR NOT SUCH ACTION
OR OMISSION PREJUDICES GUARANTOR OR INCREASES THE LIKELIHOOD THAT GUARANTOR WILL
BE REQUIRED TO PAY THE GUARANTEED OBLIGATIONS PURSUANT TO THE TERMS HEREOF, IT
IS THE UNAMBIGUOUS AND UNEQUIVOCAL INTENTION OF GUARANTOR THAT GUARANTOR SHALL
BE OBLIGATED TO PAY THE GUARANTEED OBLIGATIONS WHEN DUE, NOTWITHSTANDING ANY
OCCURRENCE, CIRCUMSTANCE, EVENT, ACTION, OR OMISSION WHATSOEVER, WHETHER
CONTEMPLATED OR UNCONTEMPLATED, AND WHETHER OR NOT OTHERWISE OR PARTICULARLY
DESCRIBED HEREIN, WHICH OBLIGATION SHALL BE DEEMED SATISFIED ONLY UPON THE FULL
AND FINAL PAYMENT AND SATISFACTION OF THE GUARANTEED OBLIGATIONS.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to Borrower,
Guarantor represents and warrants to Note B Holder as follows:
3.1
BENEFIT. GUARANTOR IS AN AFFILIATE OF
BORROWER, IS THE OWNER OF A DIRECT OR INDIRECT INTEREST IN BORROWER, AND HAS
RECEIVED, OR WILL RECEIVE, DIRECT OR INDIRECT BENEFIT FROM THE MAKING OF THIS
GUARANTY WITH RESPECT TO THE GUARANTEED OBLIGATIONS.
3.2
FAMILIARITY AND RELIANCE. GUARANTOR IS
FAMILIAR WITH, AND HAS INDEPENDENTLY REVIEWED BOOKS AND RECORDS REGARDING, THE
FINANCIAL CONDITION OF BORROWER AND IS FAMILIAR WITH THE VALUE OF ANY AND ALL
COLLATERAL INTENDED TO BE CREATED AS SECURITY FOR THE PAYMENT OF THE NOTE B OR
THE GUARANTEED OBLIGATIONS; HOWEVER, GUARANTOR IS NOT RELYING ON SUCH FINANCIAL
CONDITION OR THE COLLATERAL AS AN INDUCEMENT TO ENTER INTO THIS GUARANTY.
3.3
NO REPRESENTATION BY NOTE B HOLDER. NEITHER
NOTE B HOLDER NOR