OR PARTIAL WITHDRAWAL FROM A
MULTIEMPLOYER PLAN BY SELLER OR ANY ERISA AFFILIATE THAT RESULTS IN LIABILITY
UNDER SECTION 4201 OR 4204 OF ERISA (INCLUDING THE OBLIGATION TO SATISFY
SECONDARY LIABILITY AS A RESULT OF A PURCHASER DEFAULT) OR THE RECEIPT BY SELLER
OR ANY ERISA AFFILIATE OF NOTICE FROM A MULTIEMPLOYER PLAN THAT IT IS IN
REORGANIZATION OR INSOLVENCY PURSUANT TO SECTION 4241 OR 4245 OF ERISA OR THAT
IT INTENDS TO TERMINATE OR HAS TERMINATED UNDER SECTION 4041A OF ERISA;
(E)
THE INSTITUTION OF A PROCEEDING BY A
FIDUCIARY OF ANY MULTIEMPLOYER PLAN AGAINST SELLER OR ANY ERISA AFFILIATE TO
ENFORCE SECTION 515 OF ERISA, WHICH PROCEEDING IS NOT DISMISSED WITHIN THIRTY
(30) DAYS;
(F)
THE ADOPTION OF AN AMENDMENT TO ANY PLAN
THAT, PURSUANT TO SECTION 401(A)(29) OF THE CODE OR SECTION 307 OF ERISA, WOULD
RESULT IN THE LOSS OF TAX-EXEMPT STATUS OF THE TRUST OF WHICH SUCH PLAN IS A
PART IF SELLER OR AN ERISA AFFILIATE FAILS TO TIMELY PROVIDE SECURITY TO SUCH
PLAN IN ACCORDANCE WITH THE PROVISIONS OF SAID SECTIONS; AND
(VII)
SELLER WILL FURNISH TO BUYER, AT THE TIME IT
FURNISHES THE FINANCIAL STATEMENTS PURSUANT TO PARAGRAPH (III) ABOVE, A
CERTIFICATE OF A RESPONSIBLE OFFICER OF SELLER TO THE EFFECT THAT, TO THE BEST
OF SUCH RESPONSIBLE OFFICER'S KNOWLEDGE, SELLER DURING SUCH FISCAL PERIOD HAS
OBSERVED OR PERFORMED ALL OF ITS COVENANTS AND OTHER AGREEMENTS, AND SATISFIED
EVERY MATERIAL CONDITION, CONTAINED IN THIS AGREEMENT AND THE OTHER PROGRAM
DOCUMENTS TO BE OBSERVED, PERFORMED OR SATISFIED BY IT, AND THAT SUCH
RESPONSIBLE OFFICER HAS OBTAINED NO KNOWLEDGE OF ANY DEFAULT OR EVENT OF DEFAULT
EXCEPT AS SPECIFIED IN SUCH CERTIFICATE (AND, IF ANY DEFAULT OR EVENT OF DEFAULT
HAS OCCURRED AND IS CONTINUING, DESCRIBING THE SAME IN REASONABLE DETAIL AND
DESCRIBING THE ACTION SELLER HAS TAKEN OR PROPOSES TO TAKE WITH RESPECT
THERETO).
B)
LITIGATION.
SELLER WILL PROMPTLY, AND IN
ANY EVENT WITHIN ONE (1) BUSINESS DAY AFTER SERVICE OF PROCESS, GIVE TO BUYER
NOTICE OF ALL LEGAL OR ARBITRABLE PROCEEDINGS AFFECTING SELLER, GUARANTOR OR ANY
OF ITS SUBSIDIARIES THAT QUESTIONS OR CHALLENGES THE VALIDITY OR ENFORCEABILITY
OF ANY OF THE PROGRAM DOCUMENTS OR AS TO WHICH THERE IS A REASONABLE LIKELIHOOD
31
OF ADVERSE DETERMINATION WHICH WOULD RESULT IN A MATERIAL ADVERSE EFFECT OR IN
WHICH THE MATTER IN CONTROVERSY EXCEEDS $1,000,000.
C)
EXISTENCE, ETC.
EACH OF SELLER AND ITS
SUBSIDIARIES WILL:
(I)
WITH RESPECT TO SELLER AND NET LEASE
BORROWERS ONLY, PRESERVE AND MAINTAIN ITS LEGAL EXISTENCE AND ALL OF ITS
MATERIAL RIGHTS, PRIVILEGES, LICENSES AND FRANCHISES;
(II)
COMPLY WITH THE REQUIREMENTS OF ALL APPLICABLE
LAWS, RULES, REGULATIONS AND ORDERS OF GOVERNMENTAL AUTHORITIES (INCLUDING,
WITHOUT LIMITATION, TRUTH IN LENDING, REAL ESTATE SETTLEMENT PROCEDURES AND ALL
ENVIRONMENTAL LAWS) IF FAILURE TO COMPLY WITH SUCH REQUIREMENTS WOULD BE
REASONABLY LIKELY (EITHER INDIVIDUALLY OR IN THE AGGREGATE) TO HAVE A MATERIAL
ADVERSE EFFECT;
(III)
KEEP ADEQUATE RECORDS AND BOOKS OF ACCOUNT, IN
WHICH COMPLETE ENTRIES WILL BE MADE IN ACCORDANCE WITH GAAP