THE RISK OF THE GUARANTOR AND (II) PRESENTMENT TO OR DEMAND
OF PAYMENT FROM ANYONE WHOMSOEVER LIABLE UPON ANY OF THE OBLIGATIONS, PROTEST,
NOTICES OF PRESENTMENT, NON-PAYMENT OR PROTEST AND NOTICE OF ANY SALE OF
COLLATERAL SECURITY OR ANY DEFAULT OF ANY SORT.
(C)
NOTWITHSTANDING ANY PAYMENT OR PAYMENTS
MADE BY THE GUARANTOR HEREUNDER, OR ANY SETOFF OR APPLICATION OF FUNDS OF THE
GUARANTOR BY LENDER, THE GUARANTOR SHALL NOT BE ENTITLED TO BE SUBROGATED TO ANY
OF THE RIGHTS OF LENDER AGAINST BORROWER OR AGAINST ANY COLLATERAL OR GUARANTEE
OR RIGHT OF OFFSET HELD BY LENDER FOR THE PAYMENT OF THE OBLIGATIONS, NOR SHALL
THE GUARANTOR SEEK
OR BE ENTITLED TO SEEK ANY CONTRIBUTION OR REIMBURSEMENT
FROM BORROWER IN RESPECT OF PAYMENTS MADE BY THE GUARANTOR HEREUNDER, UNTIL ALL
AMOUNTS OWING TO LENDER BY BORROWER ON ACCOUNT OF THE OBLIGATIONS ARE PAID IN
FULL.
IF AN EVENT OF DEFAULT (AS SUCH TERM IS DEFINED IN THE TERM NOTE) HAS
OCCURRED AND IS CONTINUING, AND ANY AMOUNT SHALL BE PAID TO THE GUARANTOR ON
ACCOUNT OF SUCH SUBROGATION RIGHTS AT ANY TIME WHEN ALL OF THE OBLIGATIONS SHALL
NOT HAVE BEEN PAID IN FULL, SUCH AMOUNT SHALL BE HELD BY THE GUARANTOR IN TRUST
FOR LENDER, SEGREGATED FROM OTHER FUNDS OF THE GUARANTOR, AND SHALL FORTHWITH
UPON, AND IN ANY EVENT WITHIN TWO (2) BUSINESS DAYS OF, RECEIPT BY THE
GUARANTOR, BE TURNED OVER TO LENDER IN THE EXACT FORM RECEIVED BY THE GUARANTOR
(DULY ENDORSED BY THE GUARANTOR TO LENDER, IF REQUIRED), TO BE APPLIED AGAINST
THE OBLIGATIONS, WHETHER MATURED OR UNMATURED, IN SUCH ORDER AS LENDER MAY
DETERMINE, SUBJECT TO THE PROVISIONS OF THE TERM NOTE.
ANY AND ALL PRESENT AND
FUTURE DEBTS AND OBLIGATIONS OF BORROWER TO ANY OF THE GUARANTOR ARE HEREBY
WAIVED AND POSTPONED IN FAVOR OF, AND SUBORDINATED
3
TO THE FULL PAYMENT AND PERFORMANCE OF, ALL PRESENT AND FUTURE DEBTS AND
OBLIGATIONS OF BORROWER TO LENDER.
4.
SECURITY.
ALL SUMS AT ANY TIME TO THE
CREDIT OF THE GUARANTOR AND ANY PROPERTY OF THE GUARANTOR IN LENDER'S POSSESSION
OR IN THE POSSESSION OF ANY BANK, FINANCIAL INSTITUTION OR OTHER ENTITY THAT
DIRECTLY OR INDIRECTLY, THROUGH ONE OR MORE INTERMEDIARIES, CONTROLS OR IS
CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, LENDER (EACH SUCH ENTITY, AN
"AFFILIATE") SHALL BE DEEMED HELD BY LENDER OR SUCH AFFILIATE, AS THE CASE MAY
BE, AS SECURITY FOR ANY AND ALL OF THE GUARANTOR'S OBLIGATIONS TO LENDER AND TO
ANY AFFILIATE OF LENDER, NO MATTER HOW OR WHEN ARISING AND WHETHER UNDER THIS OR
ANY OTHER INSTRUMENT, AGREEMENT OR OTHERWISE.
5.
REPRESENTATIONS AND WARRANTIES.
THE
GUARANTOR HEREBY REPRESENTS AND WARRANTS (ALL OF WHICH REPRESENTATIONS AND
WARRANTIES SHALL SURVIVE UNTIL ALL OBLIGATIONS ARE INDEFEASIBLY SATISFIED IN
FULL), THAT:
(A)
CORPORATE STATUS.
THE GUARANTOR IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF ARIZONA.
THE GUARANTOR HAS FULL POWER, AUTHORITY AND LEGAL
RIGHT TO OWN ITS PROPERTY AND ASSETS AND