SUCH LIABILITY BY ANY COMPANY OR ANY ERISA AFFILIATE, OR IN
THE IMPOSITION OF ANY LIEN ON ANY OF THE RIGHTS, PROPERTIES OR ASSETS OF ANY
COMPANY OR ANY ERISA AFFILIATE, IN EITHER CASE PURSUANT TO TITLE I OR IV OF
ERISA OR TO SUCH PENALTY OR EXCISE TAX PROVISIONS OR TO SECTION 412 OR 430 OF
THE CODE OR SECTION 4068 OF ERISA, OTHER THAN SUCH LIABILITIES OR LIENS AS WOULD
NOT BE INDIVIDUALLY OR IN THE AGGREGATE MATERIAL.
(B)
THE PRESENT VALUE OF THE AGGREGATE BENEFIT LIABILITIES UNDER EACH
OF THE PLANS (OTHER THAN MULTIEMPLOYER PLANS), DETERMINED AS OF THE END OF SUCH
PLAN'S MOST RECENTLY ENDED PLAN YEAR ON THE BASIS OF THE ACTUARIAL ASSUMPTIONS
SPECIFIED FOR FUNDING PURPOSES IN SUCH PLAN'S MOST RECENT ACTUARIAL VALUATION
REPORT, DID NOT EXCEED THE AGGREGATE CURRENT VALUE OF THE ASSETS OF SUCH PLAN
ALLOCABLE TO SUCH BENEFIT LIABILITIES.
THE TERM "BENEFIT LIABILITIES" HAS THE
MEANING
8
SPECIFIED IN SECTION 4001 OF ERISA AND THE TERMS "CURRENT VALUE" AND "PRESENT
VALUE" HAVE THE MEANINGS SPECIFIED IN SECTION 3 OF ERISA.
(C)
EACH COMPANY AND ITS ERISA AFFILIATES HAVE NOT INCURRED WITHDRAWAL
LIABILITIES (AND ARE NOT SUBJECT TO CONTINGENT WITHDRAWAL LIABILITIES) UNDER
SECTION 4201 OR 4204 OF ERISA IN RESPECT OF MULTIEMPLOYER PLANS THAT
INDIVIDUALLY OR IN THE AGGREGATE ARE MATERIAL.
(D)
THE EXPECTED POSTRETIREMENT BENEFIT OBLIGATION (DETERMINED AS OF
THE LAST DAY OF THE COMPANIES' MOST RECENTLY ENDED FISCAL YEAR IN ACCORDANCE
WITH FINANCIAL ACCOUNTING STANDARDS BOARD STATEMENT NO. 106, WITHOUT REGARD TO
LIABILITIES ATTRIBUTABLE TO CONTINUATION COVERAGE MANDATED BY SECTION 4980B OF
THE CODE) OF THE COMPANIES AND THEIR RESPECTIVE SUBSIDIARIES IS NOT MATERIAL.
(E)
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE ISSUANCE AND
SALE OF THE NOTES HEREUNDER WILL NOT INVOLVE ANY TRANSACTION THAT IS SUBJECT TO
THE PROHIBITIONS OF SECTION 406 OF ERISA OR IN CONNECTION WITH WHICH A TAX COULD
BE IMPOSED PURSUANT TO SECTION 4975(C)(1)(A)-(D) OF THE CODE.
THE
REPRESENTATION BY EACH COMPANY TO EACH PURCHASER IN THE FIRST SENTENCE OF THIS
SECTION 5.12(E) IS MADE IN RELIANCE UPON AND SUBJECT TO THE ACCURACY OF SUCH
PURCHASER'S REPRESENTATION IN SECTION 6.2 AS TO THE SOURCES OF THE FUNDS USED TO
PAY THE PURCHASE PRICE OF THE NOTES TO BE PURCHASED BY SUCH PURCHASER.
SECTION 5.13.
PRIVATE OFFERING BY THE COMPANIES.
NEITHER ANY COMPANY NOR
ANYONE ACTING ON ITS BEHALF HAS OFFERED THE NOTES OR ANY SIMILAR SECURITIES FOR
SALE TO, OR SOLICITED ANY OFFER TO BUY ANY OF THE SAME FROM, OR OTHERWISE
APPROACHED OR NEGOTIATED IN RESPECT THEREOF WITH, ANY PERSON OTHER THAN THE
PURCHASERS AND NOT MORE THAN 10 OTHER INSTITUTIONAL INVESTORS, EACH OF WHICH HAS
BEEN OFFERED THE NOTES AT A PRIVATE SALE FOR INVESTMENT.
NEITHER ANY COMPANY
NOR ANYONE ACTING ON ITS BEHALF HAS TAKEN, OR WILL TAKE, ANY ACTION THAT WOULD
SUBJECT THE ISSUANCE OR SALE OF THE NOTES TO THE REGISTRATION REQUIREMENTS OF
SECTION 5 OF THE SECURITIES ACT OR TO THE REGISTRATION REQUIREMENTS OF ANY
SECURITIES