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.
2.12
MERGER.
THE REORGANIZATION, MERGER OR CONSOLIDATION OF ANY BORROWER
INTO OR WITH ANY OTHER PERSON.
2.13
PREFERENCE.
ANY PAYMENT BY ANY 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 ANY BORROWER OR TO ANY
OTHER PERSON.
2.14
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 ANY GUARANTOR OR INCREASES THE LIKELIHOOD THAT ANY GUARANTOR WILL BE
REQUIRED TO PAY THE GUARANTEED OBLIGATIONS PURSUANT TO THE TERMS HEREOF, IT
BEING THE UNAMBIGUOUS AND UNEQUIVOCAL INTENTION OF EACH GUARANTOR THAT SUCH
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.
10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to
Borrowers, each Guarantor represents and warrants to Lender as follows:
3.1
BENEFIT.
SUCH GUARANTOR IS AN AFFILIATE OF BORROWERS, IS THE OWNER
OF A DIRECT OR INDIRECT INTEREST IN EACH 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.
SUCH GUARANTOR IS FAMILIAR WITH, AND HAS
INDEPENDENTLY REVIEWED BOOKS AND RECORDS REGARDING, THE FINANCIAL CONDITION OF
EACH BORROWER AND IS FAMILIAR WITH THE VALUE OF ANY AND ALL COLLATERAL INTENDED
TO BE CREATED AS SECURITY FOR THE PAYMENT OF THE NOTE OR THE GUARANTEED
OBLIGATIONS; HOWEVER, SUCH GUARANTOR IS NOT RELYING ON SUCH FINANCIAL CONDITION
OR COLLATERAL AS AN INDUCEMENT TO ENTER INTO THIS GUARANTY.
3.3
NO REPRESENTATION BY LENDER.
NEITHER LENDER NOR ANY OTHER PARTY
HAS MADE ANY REPRESENTATION, WARRANTY OR STATEMENT TO SUCH GUARANTOR IN ORDER TO
INDUCE SAID GUARANTOR TO EXECUTE THIS GUARANTY.
3.4
LEGALITY.
THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH
GUARANTOR OF THIS GUARANTY AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREUNDER DO NOT AND WILL NOT CONTRAVENE OR CONFLICT WITH ANY LAW, STATUTE OR
REGULATION WHATSOEVER TO WHICH SUCH GUARANTOR IS SUBJECT OR CONSTITUTE A
MATERIAL DEFAULT (OR AN EVENT WHICH WITH NOTICE OR LAPSE OF TIME OR BOTH WOULD
CONSTITUTE A DEFAULT) UNDER, OR RESULT IN THE MATERIAL BREACH OF, ANY INDENTURE,
MORTGAGE, DEED OF TRUST, CHARGE, LIEN, OR ANY CONTRACT, AGREEMENT OR OTHER
INSTRUMENT TO WHICH SUCH GUARANTOR IS A PARTY OR WHICH MAY BE APPLICABLE TO SUCH
GUARANTOR.
THIS GUARANTY IS A LEGAL AND BINDING OBLIGATION OF SUCH GUARANTOR
AND IS ENFORCEABLE