SUCH
QUALIFICATION AND WHERE A FAILURE TO BE SO QUALIFIED COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
SECTION 3.3
POWER AND AUTHORITY.
THE GUARANTOR HAS AND HAS DULY
EXERCISED FULL POWER AND AUTHORITY TO ENTER INTO THIS GUARANTY AND TO GUARANTY
THE GUARANTIED OBLIGATIONS AS HEREIN CONTEMPLATED AND TO PERFORM ITS OBLIGATIONS
HEREUNDER.
THE EXECUTION, DELIVERY, AND PERFORMANCE BY THE GUARANTOR OF THIS
GUARANTY AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY (A) HAVE
BEEN DULY AUTHORIZED BY ALL NECESSARY ORGANIZATIONAL ACTION, (B) DO NOT AND WILL
NOT (I) CONTRAVENE THE TERMS OF THE GUARANTOR'S ORGANIZATIONAL DOCUMENTS, (II)
VIOLATE ANY MATERIAL LEGAL REQUIREMENT OR MATERIAL CONTRACT OF THE GUARANTOR, OR
(III) CONFLICT WITH OR RESULT IN ANY BREACH OR CONTRAVENTION OF, OR THE CREATION
OF ANY LIEN UNDER (A) ANY INDENTURE, INSTRUMENT OR AGREEMENT TO WHICH THE
GUARANTOR IS A PARTY OR IS SUBJECT, OR BY WHICH IT, OR ITS PROPERTY, IS BOUND OR
(B) ANY ORDER, INJUNCTION, WRIT OR DECREE OF ANY GOVERNMENTAL AUTHORITY OR ANY
ARBITRAL AWARD TO WHICH THE GUARANTOR OR ITS PROPERTY IS SUBJECT.
SECTION 3.4
ENFORCEABLE OBLIGATIONS.
UPON EXECUTION AND DELIVERY
HEREOF, THIS GUARANTY WILL CONSTITUTE A LEGAL, VALID AND BINDING OBLIGATION OF
THE GUARANTOR, ENFORCEABLE AGAINST THE GUARANTOR IN ACCORDANCE WITH ITS TERMS,
EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY ANY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, FRAUDULENT CONVEYANCE, MORATORIUM, OR SIMILAR LAW
AFFECTING CREDITORS' RIGHTS GENERALLY OR GENERAL PRINCIPLES OF EQUITY
SECTION 4
COVENANTS
SECTION 4.1
PERMITTED ACTIVITIES OF THE GUARANTOR.
THE GUARANTOR
SHALL NOT (A) INCUR, DIRECTLY OR INDIRECTLY, ANY DEBT OR ANY OTHER OBLIGATION OR
LIABILITY WHATSOEVER OTHER THAN THE DEBT AND OBLIGATIONS UNDER THIS GUARANTY AND
THE OTHER LOAN DOCUMENTS; (B) CREATE OR SUFFER TO EXIST ANY LIEN UPON ANY
PROPERTY OR ASSETS NOW OWNED OR HEREAFTER ACQUIRED, LEASED OR LICENSED BY IT
OTHER THAN THE LIENS CREATED UNDER THE SECURITY DOCUMENTS TO WHICH IT IS A
PARTY; (C) ENGAGE IN ANY BUSINESS OR ACTIVITY OR OWN ANY ASSETS OTHER THAN (I)
HOLDING 100% OF THE EQUITY INTERESTS OF THE BORROWER, (II) PERFORMING ITS
OBLIGATIONS AND ACTIVITIES INCIDENTAL THERETO UNDER THE LOAN DOCUMENTS; AND
(III) MAKING CASH DIVIDENDS TO HOLDINGS; (D) CONSOLIDATE WITH OR MERGE WITH OR
INTO, OR CONVEY, TRANSFER, LEASE OR LICENSE ALL OR SUBSTANTIALLY ALL ITS ASSETS
TO, ANY PERSON; (E) SELL
9
OR OTHERWISE DISPOSE OF ANY EQUITY INTERESTS OF THE BORROWER; OR (F) CREATE OR
ACQUIRE ANY SUBSIDIARY OR MAKE OR OWN ANY INVESTMENT IN ANY PERSON OTHER THAN
THE BORROWER.
SECTION 4.2
SEPARATENESS.
THE GUARANTOR SHALL AT ALL TIMES
(A) MAINTAIN ITS BANK ACCOUNTS, BOOKS AND RECORDS SEPARATE FROM ANY OTHER PERSON
AND OTHERWISE ENSURE THAT THE RECORDS AND BOOKS OF THE GUARANTOR REFLECT THE
SEPARATE EXISTENCE OF THE GUARANTOR AND ITS ASSETS, (B) SEPARATELY IDENTIFY AND
SEGREGATE ITS FUNDS AND ASSETS FROM THOSE OF ANY OTHER PERSON AND SHALL NOT
COMMINGLE ITS FUNDS OR ASSETS WITH THOSE OF ANY OTHER PERSON, (C) HOLD ITS
ASSETS IN ITS OWN NAME, (D)