BENEFICIARY TO BE APPLIED TO THE GUARANTEED OBLIGATIONS; AND
4.5.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, GUARANTOR SHALL NOT WAIVE AND SHALL BE ENTITLED TO ASSERT
DEFENSES BASED ON OR ARISING OUT OF ANY DEFENSE OF COUNTERPARTY BASED UPON
(1) THE TERMINATION OF ANY GUARANTEED AGREEMENTS AT A TIME WHEN COUNTERPARTY IS
NOT IN BREACH OF THE RESPECTIVE AGREEMENT, OR (2) THE FAILURE OF BENEFICIARY TO
PERFORM AN OBLIGATION OF BENEFICIARY UNDER ANY GUARANTEED AGREEMENTS THAT
ADVERSELY AFFECTS COUNTERPARTY'S PERFORMANCE OF ITS OBLIGATIONS UNDER THE
RESPECTIVE AGREEMENT.
5.
REPRESENTATIONS AND WARRANTIES.
GUARANTOR HEREBY REPRESENTS AND WARRANTS AS FOLLOWS:
5.1.
GUARANTOR IS A LIMITED LIABILITY COMPANY DULY
ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF UTAH.
5.2.
GUARANTOR HAS FULL CORPORATE POWER, AUTHORITY
AND LEGAL RIGHT TO EXECUTE AND DELIVER THIS GUARANTY AND TO PERFORM ITS
OBLIGATIONS HEREUNDER.
5.3.
THIS GUARANTY HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY GUARANTOR.
5.4.
THIS GUARANTY CONSTITUTES THE LEGAL, VALID AND
BINDING OBLIGATION OF GUARANTOR ENFORCEABLE AGAINST GUARANTOR IN ACCORDANCE WITH
ITS TERMS.
5.5.
THE EXECUTION AND DELIVERY BY GUARANTOR OF
THIS GUARANTY AND THE PERFORMANCE BY GUARANTOR OF ITS OBLIGATIONS HEREUNDER WILL
NOT (I) CONFLICT WITH OR RESULT IN ANY BREACH OF ANY PROVISION OF GUARANTOR'S
CERTIFICATE OF INCORPORATION OR BYLAWS (OR OTHER SIMILAR GOVERNING DOCUMENTS);
(II) VIOLATE ANY LAWS APPLICABLE TO GUARANTOR; (III) RESULT IN A BREACH OF OR
CONSTITUTE A DEFAULT (OR GIVE RISE TO ANY RIGHT OF TERMINATION, CANCELLATION OR
ACCELERATION) UNDER ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF ANY NOTE,
BOND, MORTGAGE, INDENTURE, LEASE, AGREEMENT OR OTHER INSTRUMENT OR OBLIGATION TO
WHICH GUARANTOR IS A PARTY OR BY WHICH IT OR ITS ASSETS OR PROPERTY ARE BOUND;
OR (IV) REQUIRE ANY CONSENT, APPROVAL, PERMIT OR AUTHORIZATION OF, OR FILING
WITH OR NOTIFICATION TO, ANY GOVERNMENTAL AUTHORITY.
5.6.
NO ACTION, SUIT OR PROCEEDING AT LAW OR IN
EQUITY OR BY OR BEFORE ANY GOVERNMENTAL AUTHORITY OR ARBITRAL TRIBUNAL IS NOW
PENDING OR, TO THE KNOWLEDGE OF GUARANTOR, THREATENED AGAINST GUARANTOR THAT
WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE LEGALITY,
VALIDITY, PERFORMANCE OR ENFORCEABILITY OF THIS GUARANTY.
5.7.
GUARANTOR'S OBLIGATIONS UNDER THIS GUARANTY
ARE NOT SUBJECT TO ANY OFFSETS OR CLAIMS OF ANY KIND AGAINST COUNTERPARTY,
BENEFICIARY OR ANY OF THEIR RESPECTIVE AFFILIATES.
5.8.
IT IS NOT AND SHALL NOT BE NECESSARY FOR
BENEFICIARY TO INQUIRE INTO THE POWERS OF COUNTERPARTY OR THE OFFICERS,
DIRECTORS, PARTNERS, TRUSTEES OR AGENTS ACTING OR PURPORTING TO ACT ON
COUNTERPARTY'S BEHALF PURSUANT TO THE GUARANTEED AGREEMENTS, AND ANY GUARANTEED
OBLIGATIONS MADE OR CREATED IN RELIANCE UPON THE PROFESSED EXERCISE OF SUCH
POWERS SHALL BE GUARANTEED HEREUNDER TO THE EXTENT MADE OR CREATED IN ACCORDANCE
WITH THE TERMS OF THE GUARANTEED AGREEMENTS.
6.
SECURITY.
THE GUARANTOR ACKNOWLEDGES
THAT PURSUANT TO THE CREDIT SUPPORT AGREEMENT AND THE PLEDGE AGREEMENT,
BENEFICIARY WILL BE PROVIDED CERTAIN SECURITY INTERESTS AND COLLATERAL TO SECURE
CERTAIN OF COUNTERPARTY'S OBLIGATIONS UNDER THIS GUARANTY AND THE GUARANTEED
AGREEMENTS, AND THE GUARANTOR HEREBY ACKNOWLEDGES AND AGREES THAT