IT IS
UNDERSTOOD THAT THE AGREEMENT IN THIS SECTION 12 IS AMONG AND SOLELY FOR THE
BENEFIT OF THE LENDERS AND THAT IF THE REQUIRED LENDERS SO AGREE (WITHOUT
REQUIRING THE CONSENT OF ANY GUARANTOR), THE GUARANTY MAY BE DIRECTLY ENFORCED
BY ANY SECURED CREDITOR.
13.
IN ORDER TO INDUCE THE BANK CREDITORS TO AMEND AND RESTATE THE
EXISTING CREDIT AGREEMENT AND TO MAKE LOANS AND ISSUE AND PARTICIPATE IN LETTERS
OF CREDIT PURSUANT TO THE CREDIT AGREEMENT, AND IN ORDER TO INDUCE THE INTEREST
RATE CREDITORS TO EXECUTE, DELIVER AND PERFORM THE INTEREST RATE AGREEMENTS,
EACH GUARANTOR REPRESENTS, WARRANTS AND COVENANTS THAT:
(A)
SUCH GUARANTOR (I) IS A DULY ORGANIZED AND VALIDLY EXISTING
CORPORATION OR LIMITED LIABILITY COMPANY AND IS IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION OF ITS ORGANIZATION, AND HAS THE CORPORATE OR LIMITED
LIABILITY COMPANY POWER AND AUTHORITY TO OWN ITS PROPERTY AND ASSETS AND TO
TRANSACT THE BUSINESS IN WHICH IT IS ENGAGED AND PRESENTLY PROPOSES TO ENGAGE
AND (II) IS DULY QUALIFIED AND IS AUTHORIZED TO DO BUSINESS AND IS IN GOOD
STANDING IN ALL JURISDICTIONS WHERE IT IS REQUIRED TO BE SO QUALIFIED AND WHERE
THE FAILURE TO BE SO QUALIFIED COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
(B)
SUCH GUARANTOR HAS THE CORPORATE OR LIMITED LIABILITY COMPANY
POWER AND AUTHORITY TO EXECUTE, DELIVER AND CARRY OUT THE TERMS AND PROVISIONS
OF THIS GUARANTY AND EACH OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY AND HAS
TAKEN ALL NECESSARY CORPORATE OR LIMITED LIABILITY COMPANY ACTION TO AUTHORIZE
THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF EACH SUCH CREDIT DOCUMENT.
SUCH GUARANTOR HAS DULY EXECUTED AND DELIVERED THIS GUARANTY AND EACH OTHER
CREDIT DOCUMENT TO WHICH IT IS A PARTY AND EACH SUCH CREDIT DOCUMENT CONSTITUTES
THE LEGAL, VALID AND BINDING OBLIGATION OF SUCH GUARANTOR ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS, EXCEPT TO THE EXTENT THAT THE ENFORCEABILITY HEREOF
OR THEREOF MAY BE LIMITED BY (I) APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS OF GENERAL APPLICATION RELATING
TO OR AFFECTING RIGHTS AND REMEDIES OF CREDITORS AND GENERAL EQUITABLE
PRINCIPLES (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN EQUITY OR AT LAW) AND
(II) FEDERAL SECURITIES OR OTHER LAWS OR REGULATIONS OR PUBLIC POLICY INSOFAR AS
THEY MAY RESTRICT THE ENFORCEABILITY OF RIGHTS TO INDEMNIFICATION.
(C)
NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE BY SUCH GUARANTOR
OF THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY, NOR
COMPLIANCE BY IT WITH
Page 9
THE TERMS AND PROVISIONS HEREOF OR THEREOF, NOR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREIN (I) WILL CONTRAVENE ANY APPLICABLE PROVISION
OF ANY LAW, STATUTE, RULE, REGULATION, ORDER, WRIT, INJUNCTION OR DECREE OF ANY
COURT OR GOVERNMENTAL INSTRUMENTALITY, (II) WILL CONFLICT OR BE INCONSISTENT
WITH OR RESULT IN ANY BREACH OF ANY OF THE TERMS, COVENANTS, CONDITIONS OR
PROVISIONS OF, OR CONSTITUTE A DEFAULT UNDER, OR (OTHER THAN PURSUANT TO THE
COLLATERAL DOCUMENTS) RESULT IN THE CREATION OR IMPOSITION OF (OR THE