OWNERSHIP PLAN" (AS DEFINED IN SECTION 4975(E)(7) OF THE CODE AND
SECTION 407(D)(6) OF ERISA) AND IS QUALIFIED UNDER SECTION 401(A) OF THE CODE;
AND
42
(T)
THE OTHER FINANCING AGREEMENTS AND ALL
INSTRUMENTS AND DOCUMENTS HEREUNDER AND THEREUNDER SHALL HAVE BEEN DULY EXECUTED
AND DELIVERED TO LENDER, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
LENDER.
4.2
Conditions Precedent to All Loans and
Letters of Credit.
The obligation of Lender to make the Loans, including the
initial Loans, or to issue any Letter of Credit, including the initial Letters
of Credit, is subject to the further satisfaction of, or waiver of, immediately
prior to or concurrently with the making of each such Loan or the issuance of
such Letter of Credit of each of the following conditions precedent:
(A)
ALL REPRESENTATIONS AND WARRANTIES
CONTAINED HEREIN AND IN THE OTHER FINANCING AGREEMENTS THAT ARE QUALIFIED AS TO
MATERIALITY OR MATERIAL ADVERSE EFFECT SHALL BE TRUE AND CORRECT AND THE
REPRESENTATIONS AND WARRANTIES THAT ARE NOT SO QUALIFIED SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS, IN EACH CASE WITH THE SAME EFFECT AS THOUGH
SUCH REPRESENTATIONS AND WARRANTIES HAD BEEN MADE ON AND AS OF THE DATE OF THE
MAKING OF EACH SUCH LOAN OR PROVIDING EACH SUCH LETTER OF CREDIT AND AFTER
GIVING EFFECT THERETO, EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND
WARRANTIES EXPRESSLY RELATE SOLELY TO AN EARLIER DATE (IN WHICH CASE SUCH
REPRESENTATIONS AND WARRANTIES SHALL HAVE BEEN TRUE AND CORRECT TO THE EXTENT
REQUIRED HEREUNDER OR UNDER THE OTHER FINANCING AGREEMENTS ON AND AS OF SUCH
EARLIER DATE);
(B)
NO LAW, REGULATION, ORDER, JUDGMENT OR
DECREE OF ANY GOVERNMENTAL AUTHORITY SHALL EXIST, AND NO ACTION, SUIT,
INVESTIGATION, LITIGATION OR PROCEEDING SHALL BE PENDING OR THREATENED IN ANY
COURT OR BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY, WHICH (I) PURPORTS TO
ENJOIN, PROHIBIT, RESTRAIN OR OTHERWISE AFFECT (A) THE MAKING OF THE LOANS OR
PROVIDING THE LETTER OF CREDIT, OR (B) THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED PURSUANT TO THE TERMS HEREOF OR THE OTHER FINANCING AGREEMENTS OR
(II) HAS OR HAS A REASONABLE LIKELIHOOD OF HAVING A MATERIAL ADVERSE EFFECT; AND
(C)
NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST
OR HAVE OCCURRED AND BE CONTINUING ON AND AS OF THE DATE OF THE MAKING OF SUCH
LOAN OR PROVIDING EACH SUCH LETTER OF CREDIT AND AFTER GIVING EFFECT THERETO.
SECTION
5.
GRANT AND PERFECTION OF SECURITY INTEREST
5.1
Grant of Security Interest.
To secure
payment and performance of all Obligations, each Borrower and Guarantor hereby
grants to Lender, a continuing security interest in, a lien upon, and a right of
set off against, and hereby assigns to Lender, as security, all personal and
real property and fixtures, and interests in property and fixtures, of each
Borrower and Guarantor, whether now owned or hereafter acquired or existing, and
wherever located (together with all other collateral security for the
Obligations at any time granted to or held or acquired by Lender, collectively,
the "Collateral"), including:
(A)