SUBORDINATED SECURITIES INDENTURE.
5.22
REGULATION H.
AS OF THE RESTATEMENT EFFECTIVE DATE, EXCEPT AS SPECIFIED
ON SCHEDULE 5.22, NO MORTGAGE ENCUMBERS IMPROVED REAL PROPERTY THAT IS LOCATED
IN AN AREA THAT HAS BEEN IDENTIFIED BY THE SECRETARY OF HOUSING AND URBAN
DEVELOPMENT AS AN AREA HAVING SPECIAL FLOOD HAZARDS AND IN WHICH FLOOD INSURANCE
HAS BEEN MADE AVAILABLE UNDER THE NATIONAL FLOOD INSURANCE ACT OF 1968.
5.23
MATERIAL CONTRACTS.
(A)
AS OF THE RESTATEMENT EFFECTIVE DATE, (I) EACH
MATERIAL CONTRACT IS IN FULL FORCE AND EFFECT AND IS A LEGAL, VALID AND BINDING
OBLIGATION OF EACH PARTY THERETO ENFORCEABLE IN ACCORDANCE WITH ITS TERMS AND
(II) NO GROUP MEMBER IS IN DEFAULT OF ANY MATERIAL PROVISION OF ANY MATERIAL
CONTRACT.
(B)
TO THE BEST KNOWLEDGE OF THE BORROWER, (I) THERE HAS BEEN NO DEFAULT,
BREACH OR OTHER VIOLATION OF ANY MATERIAL CONTRACT AND (II) NO GOVERNMENTAL
AUTHORITY HAS ANY BASIS FOR TERMINATING ANY MATERIAL CONTRACT OTHER THAN
CUSTOMARY TERMINATION PROVISIONS RELATING TO
65
CONVENIENCE AND OTHER SIMILAR PROVISIONS, EXCEPT, IN EACH CASE, AS COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(C)
TO THE BEST KNOWLEDGE OF THE BORROWER, NO GOVERNMENTAL AUTHORITY HAS
DELIVERED NOTICE OF OR OTHERWISE DEMONSTRATED ITS INTENTION TO EXERCISE ITS
OPTION TO TERMINATE A MATERIAL CONTRACT ON THE BASIS OF CLAUSE (B)(II) ABOVE
BETWEEN ITSELF AND ANY OF THE GROUP MEMBERS, EXCEPT FOR ANY SUCH TERMINATIONS
THAT, IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
(D)
SCHEDULE 5.23 SETS FORTH EACH MATERIAL CONTRACT BETWEEN ANY GROUP MEMBER
AND ANY GOVERNMENTAL AUTHORITY IN EFFECT ON THE EFFECTIVE DATE.
5.24
INSURANCE.
SCHEDULE 5.24 SETS FORTH A DESCRIPTION OF ALL MATERIAL
INSURANCE MAINTAINED BY OR ON BEHALF OF THE BORROWER AND THE SUBSIDIARY
GUARANTORS AS OF THE EFFECTIVE DATE.
AS OF THE RESTATEMENT EFFECTIVE DATE, ALL
PREMIUMS DUE AND PAYABLE IN RESPECT OF SUCH INSURANCE HAVE BEEN PAID.
THE
BORROWER REASONABLY BELIEVES THAT THE INSURANCE MAINTAINED BY OR ON BEHALF OF
THE BORROWER AND ITS SUBSIDIARIES IS ADEQUATE.
SECTION 6.
CONDITIONS PRECEDENT
6.1
CONDITIONS TO INITIAL EXTENSION OF CREDIT.
[INTENTIONALLY OMITTED].
6.2
CONDITIONS TO EACH EXTENSION OF CREDIT.
THE AGREEMENT OF EACH LENDER TO
MAKE ANY EXTENSION OF CREDIT REQUESTED TO BE MADE BY IT ON ANY DATE (INCLUDING
ITS INITIAL EXTENSION OF CREDIT) IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING
CONDITIONS PRECEDENT:
(A)
REPRESENTATIONS AND WARRANTIES.
EACH OF THE REPRESENTATIONS AND
WARRANTIES MADE BY ANY LOAN PARTY IN OR PURSUANT TO THE LOAN DOCUMENTS SHALL BE
TRUE AND CORRECT ON AND AS OF SUCH DATE AS IF MADE ON AND AS OF SUCH DATE.
(B)
NO DEFAULT.
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING ON SUCH DATE OR AFTER GIVING EFFECT TO THE EXTENSIONS OF CREDIT
REQUESTED TO BE MADE ON SUCH DATE.
Each borrowing by and issuance of a Letter of Credit for the account of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the