AS A TRUST (IT BEING
UNDERSTOOD THAT THE ESOT IS NOT A BUSINESS TRUST), IS DULY QUALIFIED
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UNDER SECTION 401(A) OF THE CODE AND IS TAX-EXEMPT UNDER SECTION 501(A) OF THE
CODE.
THE ESOT HAS BEEN ESTABLISHED, AND IS OPERATED IN COMPLIANCE IN ALL
MATERIAL RESPECTS WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY, INCLUDING THE CODE AND ERISA.
(C)
THE EXECUTION, DELIVERY AND PERFORMANCE BY
THE ESOT OF THE ESOP DOCUMENTS AND CONTINUED HOLDING OF ESOP SHARES BY THE ESOT
AND THE ADMINISTRATION OF THE ESOP AND THE ESOT PURSUANT TO THE ESOP DOCUMENTS:
(I) ARE WITHIN THE ESOP'S AND ESOT'S POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY ACTION; (II) REQUIRE NO ACTION BY OR IN RESPECT OF, OR FILING WITH,
ANY GOVERNMENTAL AUTHORITY (OTHER THAN THOSE DULY OBTAINED PRIOR TO THE DATE
HEREOF AND THAT ARE IN FULL FORCE AND EFFECT AND ROUTINE FILINGS SUBSEQUENT TO
THE DATE HEREOF PURSUANT TO REPORTING REQUIREMENTS OF ERISA); (III) DO NOT
CONTRAVENE, OR CONSTITUTE A DEFAULT UNDER, ANY PROVISION OF LAWS, RULES AND
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR OF ANY AGREEMENT,
JUDGMENT, INJUNCTION, ORDER, DECREE OR OTHER INSTRUMENT BINDING UPON THE ESOP OR
ESOT; (IV) DOES NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN, SECURITY
INTEREST, CLAIM, CHARGE OR OTHER ENCUMBRANCE ON ANY ASSET OF THE ESOP OR ESOT
(OTHER THAN AS CONTEMPLATED BY THE ESOP DOCUMENTS); AND (V) DOES NOT RESULT IN
ANY TAX UNDER SECTION 4975 OF THE CODE.
(D)
NO BORROWER OR GUARANTOR SHALL AMEND, MODIFY,
CHANGE, AGREE TO ANY AMENDMENT, MODIFICATION OR OTHER CHANGE TO (OR MAKE ANY
PAYMENT CONSISTENT WITH ANY AMENDMENT OR OTHER CHANGE TO) OR WAIVE ANY OF ITS
RIGHTS UNDER ANY OF THE ESOP DOCUMENTS IN ANY MANNER WHICH WOULD ADVERSELY
AFFECT, OR COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT, THE OBLIGATIONS OR
THE COLLATERAL.
(E)
AS OF DECEMBER 31, 2008, THE OUTSTANDING
PRINCIPAL AMOUNT OF THE ESOP INDEBTEDNESS WAS $40,038,907.
8.20
ESOP Loan Documents.
(A)
TO THE BEST OF BORROWERS' AND GUARANTORS'
KNOWLEDGE, THE LOAN EVIDENCED BY THE ESOP LOAN DOCUMENTS CONSTITUTES AN "EXEMPT
LOAN" WITHIN THE MEANING OF SECTION 4975(D)(3) OF THE CODE AND COMPLIES WITH ALL
REQUIREMENTS APPLICABLE TO EXEMPT LOANS UNDER 26 C.F.R.
§54.4975-7(B)(1)(III) AND 29 C.F.R. §2550.408(B)-3(A)(3).
(B)
TO THE BEST OF BORROWERS' AND GUARANTORS'
KNOWLEDGE, THE EXECUTION, DELIVERY AND PERFORMANCE OF THE ESOP LOAN DOCUMENTS
AND THE ESOP DOCUMENTS BY THE PARTIES THERETO, AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY, WILL NOT CONSTITUTE A "PROHIBITED
TRANSACTION" OR OTHERWISE CONSTITUTE A VIOLATION OF, OR GIVE RISE TO ANY
LIABILITY UNDER ANY LAWS, RULES AND REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY (INCLUDING WITHOUT LIMITATION, ERISA AND THE CODE).
8.21
Accuracy and Completeness of Information.
All
information furnished by or on behalf of any Borrower or Guarantor in writing to
Lender in connection with this Agreement or
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any of the other Financing Agreements or any transaction contemplated hereby or
thereby, including all information on the