which (without
limiting the generality of the foregoing) may be an amount which is equal to the
greater of:
29.2.1 the fair consideration actually received by such Guarantor under the
terms and as a result of the Loan Documents and the value of the benefits
described in this Section 15(b) hereof, including (and to the extent not
inconsistent with applicable federal and state Laws affecting the enforceability
of guaranties) distributions, commitments, and advances made to or for the
benefit of such Guarantor with the proceeds of any credit extended under the
Loan Documents, or
29.2.2 the excess of (A) the amount of the fair value of the assets of such
Guarantor as of the date of this Guaranty as determined in accordance with
applicable federal and state Laws governing determinations of the insolvency of
debtors as in effect on the date hereof, over (B) the amount of all liabilities
of such Guarantor as of the date of this Guaranty, also as determined on the
basis of applicable federal and state Laws governing the insolvency of debtors
as in effect on the date hereof.
11
29.3 Notwithstanding anything to the contrary in this Section or elsewhere in
this Guaranty, this Guaranty shall be presumptively valid and enforceable to its
full extent in accordance with its terms, as if this Section (and references
elsewhere in this Guaranty to enforceability to the fullest extent permitted by
Law) were not a part of this Guaranty, and in any related litigation the burden
of proof shall be on the party asserting the invalidity or unenforceability of
any provision hereof or asserting any limitation on any Guarantor's obligations
hereunder as to each element of such assertion.
30. ADDITIONAL GUARANTORS. AT ANY TIME AFTER THE INITIAL EXECUTION AND DELIVERY
OF THIS GUARANTY TO THE ADMINISTRATIVE AGENT AND THE LENDERS, ADDITIONAL PERSONS
MAY BECOME PARTIES TO THIS GUARANTY AND THEREBY ACQUIRE THE DUTIES AND RIGHTS OF
BEING GUARANTORS HEREUNDER BY EXECUTING AND DELIVERING TO THE ADMINISTRATIVE
AGENT AND THE LENDERS A GUARANTOR JOINDER PURSUANT TO THE CREDIT AGREEMENT. NO
NOTICE OF THE ADDITION OF ANY GUARANTOR SHALL BE REQUIRED TO BE GIVEN TO ANY
PRE-EXISTING GUARANTOR AND EACH GUARANTOR HEREBY CONSENTS THERETO.
31. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS AND ADDITIONAL LIABILITIES OF
THE GUARANTORS UNDER THIS GUARANTY ARE JOINT AND SEVERAL OBLIGATIONS OF THE
GUARANTORS, AND EACH GUARANTOR HEREBY WAIVES TO THE FULL EXTENT PERMITTED BY LAW
ANY DEFENSE IT MAY OTHERWISE HAVE TO THE PAYMENT AND PERFORMANCE OF THE
GUARANTIED OBLIGATIONS AND THAT ITS LIABILITY HEREUNDER IS LIMITED AND NOT JOINT
AND SEVERAL. EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT THE FOREGOING WAIVERS
AND THOSE SET FORTH BELOW SERVE AS A MATERIAL INDUCEMENT TO THE AGREEMENT OF THE
ADMINISTRATIVE AGENT AND THE LENDERS TO MAKE THE LOANS, AND THAT THE
ADMINISTRATIVE AGENT AND THE LENDERS ARE RELYING ON EACH SPECIFIC WAIVER AND ALL
SUCH WAIVERS IN ENTERING INTO THIS GUARANTY. THE UNDERTAKINGS OF EACH GUARANTOR
HEREUNDER SECURE THE OBLIGATIONS OF ITSELF AND THE OTHER GUARANTORS. THE