any Lender, including claims under
certificates of deposit. During the existence of any Event of Default, the
Administrative Agent or any Lender is hereby authorized to foreclose upon,
offset, appropriate, and apply, at any time and from time to time, without
notice to the Company, any and all items hereinabove referred to against the
Obligations then due and payable.
4.5
Guaranty.
(A)
EACH GUARANTOR HAS EXECUTED AND DELIVERED TO THE ADMINISTRATIVE
AGENT, AND EACH RESTRICTED SUBSIDIARY OF THE COMPANY NOW EXISTING OR CREATED,
ACQUIRED OR COMING INTO EXISTENCE AFTER THE DATE HEREOF SHALL, PROMPTLY UPON
REQUEST BY THE ADMINISTRATIVE AGENT, EXECUTE AND DELIVER TO THE ADMINISTRATIVE
AGENT, A GUARANTY SETTING FORTH THEREIN AN ABSOLUTE AND UNCONDITIONAL GUARANTY
OF THE TIMELY REPAYMENT OF, AND THE DUE AND PUNCTUAL PERFORMANCE OF THE
OBLIGATIONS OF THE COMPANY HEREUNDER, WHICH GUARANTY SHALL BE SATISFACTORY TO
THE LENDERS IN
46
FORM AND SUBSTANCE.
THE COMPANY WILL CAUSE EACH OF ITS RESTRICTED SUBSIDIARIES
TO DELIVER TO THE ADMINISTRATIVE AGENT, SIMULTANEOUSLY WITH ITS DELIVERY OF SUCH
A GUARANTY, WRITTEN EVIDENCE SATISFACTORY TO THE ADMINISTRATIVE AGENT AND ITS
COUNSEL THAT SUCH RESTRICTED SUBSIDIARY HAS TAKEN ALL CORPORATE, LIMITED
LIABILITY COMPANY OR PARTNERSHIP ACTION NECESSARY TO DULY APPROVE AND AUTHORIZE
ITS EXECUTION, DELIVERY AND PERFORMANCE OF SUCH GUARANTY AND ANY SECURITY
DOCUMENTS AND OTHER DOCUMENTS WHICH IT IS REQUIRED TO EXECUTE.
(b)
Guaranty Representations.
To induce the Lenders, the Issuing
Lender and the Administrative Agent to enter into this Agreement, each Loan
Party represents and warrants to each such Person at the Effective Time:
(I)
BENEFIT TO GUARANTORS.
THE LOAN PARTIES ARE MUTUALLY DEPENDENT
ON EACH OTHER IN THE CONDUCT OF THEIR RESPECTIVE BUSINESSES, WITH THE CREDIT
NEEDED FROM TIME TO TIME BY EACH OFTEN BEING PROVIDED BY ANOTHER OR BY MEANS OF
FINANCING OBTAINED BY ONE SUCH AFFILIATE WITH THE SUPPORT OF THE OTHER FOR THEIR
MUTUAL BENEFIT AND THE ABILITY OF EACH TO OBTAIN SUCH FINANCING IS DEPENDENT ON
THE SUCCESSFUL OPERATIONS OF THE OTHER.
THE BOARD OF DIRECTORS, MANAGER OR
GENERAL PARTNER, WHERE APPLICABLE, OF EACH GUARANTOR HAS DETERMINED THAT SUCH
GUARANTOR'S EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT MAY REASONABLY
BE EXPECTED TO DIRECTLY OR INDIRECTLY BENEFIT SUCH GUARANTOR AND IS IN THE BEST
INTERESTS OF SUCH GUARANTOR.
(II)
REASONABLE CONSIDERATION FOR GUARANTIES.
THE DIRECT OR INDIRECT
VALUE OF THE CONSIDERATION RECEIVED AND TO BE RECEIVED BY SUCH GUARANTOR IN
CONNECTION HEREWITH IS REASONABLY WORTH AT LEAST AS MUCH AS THE LIABILITY AND
OBLIGATIONS OF EACH GUARANTOR HEREUNDER AND ITS GUARANTY, AND THE INCURRENCE OF
SUCH LIABILITY AND OBLIGATIONS IN RETURN FOR SUCH CONSIDERATION MAY REASONABLY
BE EXPECTED TO BENEFIT SUCH GUARANTOR, DIRECTLY OR INDIRECTLY.
(III)
NO INSOLVENCIES.
NO LOAN PARTY IS "INSOLVENT" (THAT IS, THE SUM
OF SUCH PERSON'S ABSOLUTE AND CONTINGENT LIABILITIES, INCLUDING THE OBLIGATIONS,
DOES NOT EXCEED THE FAIR MARKET VALUE OF SUCH PERSON'S ASSETS, INCLUDING ANY
RIGHTS OF CONTRIBUTION, REIMBURSEMENT OR INDEMNITY).
EACH LOAN PARTY HAS
CAPITAL WHICH IS ADEQUATE FOR THE BUSINESSES IN WHICH SUCH PERSON IS ENGAGED AND