ALLOW (I) ANY SINGLE EMPLOYER PLAN WITH RESPECT
TO WHICH THE OBLIGOR OR ITS ERISA AFFILIATES WHICH ARE SUBSIDIARIES OF THE
OBLIGOR MAY HAVE ANY LIABILITY TO TERMINATE, (II) THE OBLIGOR OR ANY OF ITS
ERISA AFFILIATES WHICH ARE SUBSIDIARIES OF THE OBLIGOR TO WITHDRAW FROM ANY
SINGLE EMPLOYER PLAN AND, IF APPLICABLE, A MULTIEMPLOYER PLAN, OR (III) ANY
ACCUMULATED FUNDING DEFICIENCY (AS DEFINED IN SECTION 302 OF ERISA AND
SECTION 412 OF THE CODE), WHETHER OR NOT WAIVED, TO EXIST INVOLVING ANY OF ITS
SINGLE EMPLOYER PLANS, TO THE EXTENT THAT ANY OF THE EVENTS DESCRIBED IN (I),
(II) OR (III), SINGLY OR IN THE AGGREGATE, COULD HAVE A MATERIAL ADVERSE EFFECT;
OR
(B)
FAIL, OR PERMIT ANY OF ITS ERISA AFFILIATES WHICH ARE
SUBSIDIARIES OF THE OBLIGOR TO FAIL, TO COMPLY WITH ERISA OR OTHER RELATED
PROVISIONS OF THE CODE, IF ANY SUCH NON-COMPLIANCE, SINGLY OR IN THE AGGREGATE,
WOULD BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
5.1.6
FINANCIAL TESTING: THE FINANCIAL COVENANTS SET
OUT IN SUB-CLAUSES 5.2.1(B)(XVIII), 5.2.1(B)(XXI), 5.3.4(B)(IX), 6.1.1(E) AND
6.1.2 BELOW SHALL BE TESTED BY REFERENCE TO EACH OF THE FINANCIAL STATEMENTS
AND/OR EACH COMPLIANCE CERTIFICATE DELIVERED PURSUANT TO SUB-CLAUSE
5.1.2(I) (COMPLIANCE CERTIFICATE).
5.2
NEGATIVE COVENANTS
5.2.1
NEGATIVE PLEDGE:
(A)
NEITHER THE OBLIGOR NOR ANY OF ITS SUBSIDIARIES WILL
PERMIT, CREATE, ASSUME, INCUR OR SUFFER TO EXIST ANY LIEN ON ANY ASSET TANGIBLE
OR INTANGIBLE NOW OWNED OR HEREAFTER ACQUIRED BY IT, EXCEPT AS SET OUT IN
PARAGRAPH (B) BELOW.
(B)
PARAGRAPH (A) ABOVE DOES NOT APPLY TO:
(I)
LIENS CREATED PURSUANT TO THE SECURITY DOCUMENTS;
(II)
LIENS EXISTING ON THE DATE HEREOF AND LISTED ON
SCHEDULE 1 (EXISTING ENCUMBRANCES) HERETO;
(III)
LIENS SECURING REPURCHASE AGREEMENTS CONSTITUTING A
BORROWING OF FUNDS BY THE OBLIGOR OR ANY OF ITS SUBSIDIARIES IN THE ORDINARY
COURSE OF BUSINESS FOR LIQUIDITY PURPOSES AND IN NO EVENT FOR A PERIOD EXCEEDING
NINETY (90) DAYS IN EACH CASE;
(IV)
LIENS ARISING PURSUANT TO PURCHASE MONEY MORTGAGES, CAPITAL
LEASES OR SECURITY INTERESTS SECURING INDEBTEDNESS REPRESENTING THE PURCHASE
PRICE (OR FINANCING OF THE PURCHASE PRICE WITHIN NINETY (90) DAYS AFTER THE
RESPECTIVE PURCHASE) OF ASSETS ACQUIRED AFTER THE CLOSING DATE;
32
(V)
LIENS (X) ON ANY ASSET OF ANY PERSON EXISTING AT THE TIME
SUCH PERSON IS MERGED OR CONSOLIDATED WITH OR INTO THE OBLIGOR OR ANY OF ITS
SUBSIDIARIES AND NOT CREATED IN CONTEMPLATION OF SUCH EVENT OR (Y) SECURING
ACQUIRED INDEBTEDNESS SO LONG AS SUCH LIEN EXISTED PRIOR TO THE CONTEMPLATED
ACQUISITION, WAS NOT CREATED IN CONTEMPLATION OF SUCH ACQUISITION AND ONLY
RELATES TO ASSETS OF THE PERSON SO ACQUIRED;
(VI)
LIENS SECURING OBLIGATIONS OWED BY THE OBLIGOR OR ANY OF ITS
SUBSIDIARIES TO THE PARENT OR ANY OTHER SUBSIDIARY OF THE PARENT, IN EACH CASE
SOLELY TO THE EXTENT THAT SUCH LIENS ARE REQUIRED BY AN APPLICABLE INSURANCE
REGULATORY AUTHORITY FOR SUCH PERSON TO MAINTAIN SUCH OBLIGATIONS;
(VII)
LIENS SECURING INSURANCE OBLIGATIONS OF THE OBLIGOR OR ANY OF
ITS SUBSIDIARIES OWED TO THE PARENT OR ANY OTHER