ARBITRATOR THAT (I) IF
ADVERSELY DETERMINED, COULD HAVE A MATERIAL ADVERSE EFFECT OR (II) RELATES TO
THIS GUARANTY OR ANY OF THE OTHER TRANSACTION DOCUMENTS TO WHICH SUCH GUARANTOR
IS A PARTY OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
(F)
SUCH GUARANTOR:
(I) HAS READ AND
UNDERSTANDS THE TERMS AND CONDITIONS OF THE SECURITIES PURCHASE AGREEMENT AND
THE OTHER TRANSACTION DOCUMENTS; AND (II) NOW HAS AND WILL CONTINUE TO HAVE
INDEPENDENT MEANS OF OBTAINING INFORMATION CONCERNING THE AFFAIRS, FINANCIAL
CONDITION AND BUSINESS OF THE PARENT AND THE OTHER TRANSACTION PARTIES, AND HAS
NO NEED OF, OR RIGHT TO OBTAIN FROM THE COLLATERAL AGENT OR ANY BUYER, ANY
CREDIT OR OTHER INFORMATION CONCERNING THE AFFAIRS, FINANCIAL CONDITION OR
BUSINESS OF THE PARENT OR THE OTHER TRANSACTION PARTIES THAT MAY COME UNDER THE
CONTROL OF THE COLLATERAL AGENT OR ANY BUYER.
(G)
SUCH GUARANTOR COVENANTS AND AGREES THAT
UNTIL INDEFEASIBLE FULL AND FINAL PAYMENT OF THE GUARANTEED OBLIGATIONS, IT WILL
COMPLY IN ALL MATERIAL RESPECTS WITH EACH OF THE COVENANTS (EXCEPT TO THE EXTENT
APPLICABLE ONLY TO A PUBLIC COMPANY, OR APPLICABLE TO BVI AS THE PARENT COMPANY
OF SUCH GUARANTOR), WHICH ARE SET FORTH IN SECTION 4 OF THE SECURITIES PURCHASE
AGREEMENT AS IF SUCH GUARANTOR WERE A PARTY THERETO.
SECTION 7.
RIGHT OF SET-OFF.
UPON THE OCCURRENCE AND DURING THE CONTINUANCE
OF ANY EVENT OF DEFAULT, THE COLLATERAL AGENT OR ANY BUYER MAY, AND IS HEREBY
AUTHORIZED TO, AT ANY TIME AND FROM TIME TO TIME, WITHOUT NOTICE TO ANY
GUARANTOR (ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY EACH GUARANTOR) AND TO THE
FULLEST EXTENT PERMITTED BY LAW, SET-OFF AND APPLY ANY AND ALL DEPOSITS (GENERAL
OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL) AT ANY TIME HELD AND OTHER
INDEBTEDNESS AT ANY TIME OWING BY THE COLLATERAL AGENT OR ANY BUYER TO OR FOR
THE CREDIT OR THE ACCOUNT OF ANY GUARANTOR AGAINST ANY AND ALL OBLIGATIONS OF
ANY GUARANTOR NOW OR HEREAFTER EXISTING UNDER THIS GUARANTY OR ANY OTHER
TRANSACTION DOCUMENT, IRRESPECTIVE OF WHETHER OR NOT THE COLLATERAL AGENT OR ANY
BUYER SHALL HAVE MADE ANY DEMAND UNDER THIS GUARANTY OR ANY OTHER TRANSACTION
DOCUMENT AND ALTHOUGH SUCH OBLIGATIONS MAY BE CONTINGENT OR UNMATURED.
THE
COLLATERAL AGENT AND EACH BUYER AGREES TO NOTIFY THE RELEVANT GUARANTOR PROMPTLY
AFTER ANY SUCH SET-OFF AND APPLICATION MADE BY THE COLLATERAL AGENT OR SUCH
BUYER, PROVIDED THAT THE FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT THE
VALIDITY OF SUCH SET-OFF AND APPLICATION.
THE RIGHTS OF THE COLLATERAL AGENT
AND THE BUYERS UNDER THIS SECTION 7 ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES
(INCLUDING, WITHOUT LIMITATION, OTHER RIGHTS OF SET-OFF) WHICH THE COLLATERAL
AGENT AND THE BUYERS MAY HAVE UNDER THIS GUARANTY OR ANY OTHER TRANSACTION
DOCUMENT IN LAW OR OTHERWISE.
5
SECTION 8.
NOTICES, ETC.
ALL NOTICES AND OTHER COMMUNICATIONS PROVIDED FOR
HEREUNDER SHALL BE IN WRITING AND SHALL BE MAILED, TELECOPIED OR DELIVERED, IF
TO ANY GUARANTOR, TO IT AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGE