THE RESPECTIVE DATES THEREOF, AND NO MATERIALLY ADVERSE
CHANGE HAS OCCURRED IN THE FINANCIAL CONDITIONS REFLECTED THEREIN SINCE THE
RESPECTIVE DATES THEREOF.
NONE OF THE AFORESAID FINANCIAL STATEMENTS OR ANY
CERTIFICATE OR STATEMENT FURNISHED TO LENDER BY OR ON BEHALF OF GUARANTOR IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND NONE OF THE
REPRESENTATIONS AND WARRANTIES IN THIS GUARANTY CONTAINS ANY UNTRUE STATEMENT OF
A MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED THEREIN OR HEREIN NOT MISLEADING.
GUARANTOR IS NOT
INSOLVENT WITHIN THE MEANING OF THE UNITED STATES BANKRUPTCY CODE OR ANY OTHER
APPLICABLE LAW, CODE OR REGULATION AND THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS GUARANTY WILL NOT RENDER GUARANTOR INSOLVENT.
(G)
CONSIDERATION.
GUARANTOR IS THE OWNER, DIRECTLY
OR INDIRECTLY, OF LEGAL AND BENEFICIAL EQUITY INTERESTS IN BORROWER, AND AS SUCH
WILL MATERIALLY BENEFIT FROM THE MAKING OF THE LOAN.
4.
RESERVED
5.
UNCONDITIONAL CHARACTER OF OBLIGATIONS OF
GUARANTOR.
(A)
THE OBLIGATIONS OF GUARANTOR HEREUNDER SHALL BE
IRREVOCABLE, ABSOLUTE AND UNCONDITIONAL, IRRESPECTIVE OF THE VALIDITY,
REGULARITY OR ENFORCEABILITY, IN WHOLE OR IN PART, OF THE NOTE OR FEE LETTER OR
ANY PROVISION THEREOF, OR THE ABSENCE OF ANY ACTION TO ENFORCE THE SAME, ANY
WAIVER OR CONSENT WITH RESPECT TO ANY PROVISION THEREOF, THE RECOVERY OF ANY
JUDGMENT AGAINST BORROWER, GUARANTOR OR ANY OTHER PERSON OR ANY ACTION TO
ENFORCE THE SAME, ANY FAILURE OR DELAY IN THE ENFORCEMENT OF THE OBLIGATIONS OF
BORROWER UNDER THE NOTE OR THE FEE LETTER OR GUARANTOR UNDER THIS GUARANTY, OR
ANY SETOFF, COUNTERCLAIM, AND IRRESPECTIVE OF ANY OTHER CIRCUMSTANCES WHICH
MIGHT OTHERWISE LIMIT RECOURSE AGAINST GUARANTOR BY LENDER OR CONSTITUTE A LEGAL
OR EQUITABLE DISCHARGE OR DEFENSE OF A GUARANTOR OR SURETY.
LENDER MAY ENFORCE
THE OBLIGATIONS OF GUARANTOR UNDER THIS GUARANTY BY A PROCEEDING AT LAW, IN
EQUITY OR OTHERWISE, INDEPENDENT OF ANY LOAN FORECLOSURE OR SIMILAR PROCEEDING
OR ANY DEFICIENCY ACTION AGAINST BORROWER OR ANY OTHER PERSON AT ANY TIME,
EITHER BEFORE OR AFTER AN ACTION AGAINST THE PROPERTY OR ANY PART THEREOF,
BORROWER OR ANY OTHER PERSON.
THIS GUARANTY IS A GUARANTY OF PAYMENT AND
PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION.
GUARANTOR WAIVES
DILIGENCE, NOTICE OF ACCEPTANCE OF THIS GUARANTY, FILING OF CLAIMS WITH ANY
COURT, ANY PROCEEDING TO ENFORCE ANY PROVISION OF ANY OTHER LOAN DOCUMENT,
AGAINST GUARANTOR, BORROWER OR ANY OTHER PERSON, ANY RIGHT TO REQUIRE A
PROCEEDING FIRST AGAINST BORROWER OR ANY OTHER PERSON, OR TO EXHAUST ANY
SECURITY (INCLUDING, WITHOUT LIMITATION, THE PROPERTY) FOR THE PERFORMANCE OF
THE GUARANTEED OBLIGATIONS OR ANY OTHER OBLIGATIONS OF BORROWER OR ANY OTHER
PERSON, OR ANY PROTEST, PRESENTMENT, NOTICE OF DEFAULT OR OTHER NOTICE OR DEMAND
WHATSOEVER (EXCEPT TO THE EXTENT EXPRESSLY PROVIDED TO THE CONTRARY IN THIS
GUARANTY).
3
(B)
THE OBLIGATIONS OF GUARANTOR UNDER THIS GUARANTY,
AND THE RIGHTS OF LENDER TO ENFORCE THE SAME BY PROCEEDINGS, WHETHER BY ACTION
AT LAW, SUIT IN EQUITY OR OTHERWISE, SHALL NOT BE IN ANY WAY AFFECTED