Common use of Representations and Warranties; Certain Agreements Clause in Contracts

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby represents, warrants and covenants as follows: (a) All representations and warranties contained in the Credit Agreement that relate to such Guarantor or to the Credit Documents to which such Guarantor is a party, to the extent already qualified by materiality, shall be true and correct in all respects, and, if not so already qualified, shall be true and correct in all material respects, in any case on and as of the date of this Agreement as if made on and as of such date (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledge. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement that impose, or purport to impose, through agreements with the Company, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 of the Credit Agreement. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of a Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby represents, warrants warrants, on and as of the Closing Date and after giving effect to the Transactions and the making of the Loans and the other financial accommodations on the Closing Date and on and as of each date required by Section 4.02 of the Credit Agreement, and covenants as followsto and with the Administrative Agent, for the benefit of the Finance Parties, until the Commitments have been terminated and the principal of and interest on each Loan and all fees payable under the Credit Agreement have been paid in full, that: (a) All The representations and warranties contained in the Credit Agreement that relate (with respect to the business, operations, assets, financial condition, liabilities or contracts of, or which otherwise pertain to, such Guarantor or (including to the Credit Documents to which extent such Guarantor is referred to as a party, to Loan Party in such representations and warranties)) are (i) in the extent already case of representations and warranties qualified by “materiality”, shall be “Material Adverse Effect” or similar language, true and correct in all respectsrespects and (ii) in the case of all other representations and warranties, and, if not so already qualified, shall be true and correct in all material respects, in any case on except to the extent such representations and as of the date of this Agreement as if made on and as of such date (unless stated warranties specifically refer to relate to a specific an earlier date, in which case such representations and warranties they shall be true and correct in all material respects on the basis set forth above as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledge. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement that impose, imposes or purport purports to impose, through agreements with the CompanyBorrowers, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 8.01 of the Credit Agreement. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Administrative Agent or any other Secured Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board board of Directors directors (or persons performing similar functions in case of a the Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (if) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby represents, warrants and covenants as follows: (a) All representations and warranties contained in the Credit Agreement Amended and Restated Convertible Note Documents that relate to such Guarantor or to the Credit Documents to which such Guarantor is a party, to the extent already qualified by materiality, shall be are true and correct in all respects, and, if not so already qualified, shall be true and correct in all material respects, in any case on and as of the date of this Agreement as if made on and as of such date (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledgecorrect. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement Amended and Restated Convertible Note Documents that impose, impose or purport to impose, through agreements with the CompanyBorrower, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 4(a) of the Credit AgreementAmended and Restated Convertible Notes. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Agent or any other Secured Party Holder and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of a Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby represents, warrants and covenants as follows: (a) All representations and warranties contained in the Credit Agreement Bridge Loan Documents that relate to such Guarantor or to the Credit Documents to which such Guarantor is a party, to the extent already qualified by materiality, shall be are true and correct in all respects, and, if not so already qualified, shall be true and correct in all material respects, in any case on and as of the date of this Agreement as if made on and as of such date (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledgecorrect. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement Bridge Loan Documents that impose, impose or purport to impose, through agreements with the CompanyBorrower, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 4(a) of the Credit AgreementAmended and Restated Bridge Notes. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Agent or any other Secured Party Holder and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of a Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Subsidiary Guarantor other than the Company hereby severally represents, warrants and covenants as of the Closing Date and on and as of each date as required by the Credit Agreement as follows: (a) All The representations and warranties contained in the Credit Agreement that relate and the other Loan Documents (insofar as they pertain to such Subsidiary Guarantor or to the Credit Documents to which such Guarantor is a party, (including to the extent already such Subsidiary Guarantor is referred to as a Loan Party or Group Company in such representations and warranties)) are (i) in the case of representations and warranties qualified by “materiality”, shall be “Material Adverse Effect” or similar language, true and correct in all respectsrespects and (ii) in the case of all other representations and warranties, and, if not so already qualified, shall be true and correct in all material respects, in any case on except to the extent such representations and as of the date of this Agreement as if made on and as of such date (unless stated warranties specifically refer to relate to a specific an earlier date, in which case such representations and warranties they shall be true and correct in all material respects on the basis set forth above as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledge. (b) Such Subsidiary Guarantor agrees to observe and comply with each of the covenants contained in the Credit Agreement (x) insofar as they pertain to such Subsidiary Guarantor or (y) that impose, imposes or purport purports to impose, through agreements with the CompanyBorrower, restrictions or obligations on such Subsidiary Guarantor. (c) Such Subsidiary Guarantor acknowledges that any default in the due observance or performance by such Subsidiary Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 8.01 of the Credit Agreement. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Subsidiary Guarantor has, independently and without reliance upon the Collateral Administrative Agent or any other Secured Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Subsidiary Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board board of Directors directors (or persons performing similar functions in case of a the Subsidiary Guarantor which is not a corporation) of such Subsidiary Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Subsidiary Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (ie) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Subsidiary Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby represents, warrants and covenants as follows: (a) All representations and warranties contained in the Credit Agreement that relate to such Guarantor or to the Credit Documents to which such Guarantor is a party, to the extent already qualified by materiality, shall be are true and correct in all respects, and, if not so already qualified, shall be true and correct in all material respects, in any case on and as of the date of this Agreement as if made on and as of such date (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledgecorrect. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement that impose, impose or purport to impose, through agreements with the CompanyBorrower, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 8.01 of the Credit Agreement. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Administrative Agent or any other Secured Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of a Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby severally represents, warrants and covenants as follows: (a) All The representations and warranties contained in the Credit Agreement that relate (with respect to the business, operations, assets, financial condition, liabilities or contracts of, or which otherwise pertain to, such Guarantor or (including to the Credit Documents to which extent such Guarantor is referred to as a party, to Loan Party in such representations and warranties)) are (i) in the extent already case of representations and warranties qualified by “materiality”, shall be “Material Adverse Effect” or similar language, true and correct in all respectsrespects and (ii) in the case of all other representations and warranties, and, if not so already qualified, shall be true and correct in all material respects, in any case on except to the extent such representations and as of the date of this Agreement as if made on and as of such date (unless stated warranties specifically refer to relate to a specific an earlier date, in which case such representations and warranties they shall be true and correct in all material respects on the basis set forth above as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledge. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement that impose, imposes or purport purports to impose, through agreements with the CompanyBorrower, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 8.01 of the Credit Agreement. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Administrative Agent or any other Secured Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board board of Directors directors (or persons performing similar functions in case of a the Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (if) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.

Representations and Warranties; Certain Agreements. Each Guarantor other than the Company hereby represents, warrants warrants, on and as of the Closing Date and after giving effect to the Transactions and the making of the Loans and the other financial accommodations on the Closing Date and on and as of each date required by Section 4.02 of the Credit Agreement, and covenants as followsto and with the Administrative Agent, for the benefit of the Finance Parties, until the Commitments have been terminated and the principal of and interest on each Loan and all fees payable under the Credit Agreement have been paid in full, that: (a) All The representations and warranties contained in the Credit Agreement that relate (with respect to the business, operations, assets, financial condition, liabilities or contracts of, or which otherwise pertain to, such Guarantor or (including to the Credit Documents to which extent such Guarantor is referred to as a party, to Loan Party in such representations and warranties)) are (i) in the extent already case of representations and warranties qualified by “materiality”, shall be “Material Adverse Effect” or similar language, true and correct in all respectsrespects and (ii) in the case of all other representations and warranties, and, if not so already qualified, shall be true and correct in all material respects, in any case on except to the extent such representations and as of the date of this Agreement as if made on and as of such date (unless stated warranties specifically refer to relate to a specific an earlier date, in which case such representations and warranties they shall be true and correct in all material respects on the basis set forth above as of such earlier date); provided that each reference in such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3.1(a) only, be deemed to be a reference to such Guarantor’s knowledge. (b) Such Guarantor agrees to comply with each of the covenants contained in the Credit Agreement that impose, imposes or purport purports to impose, through agreements with the CompanyBorrower, restrictions or obligations on such Guarantor. (c) Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 8.01 of the Credit Agreement. (d) There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived. (e) Such Guarantor has, independently and without reliance upon the Collateral Administrative Agent or any other Secured Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board board of Directors directors (or persons performing similar functions in case of a the Guarantor which is not a corporation) of such Guarantor has decided that execution, delivery and performance a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement and any other Credit Documents to be executed by such Guarantor is within its purpose, in furtherance of its direct and/or indirect business interests, is in its best interest and that it expects to derive benefit directly or indirectly, from (i) successful operations of the Other Credit Parties and (ii) the credit extended by the Lenders to the Company under the Credit Agreement, both in its separate capacity and as a member of the group of companies. (if) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, the date of the Credit Party Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.