HEREUNDER AND SHALL
NOT BE CONSTRUED AS A COVENANT MADE BY FEE OWNER WITH RESPECT TO OPBIZ;
PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THE FOREGOING PROVISIONS OF THIS
SECTION 5.2.12 SHALL BE DEEMED OR CONSTRUED TO EFFECT THE JOINT AND SEVERAL
NATURE OF THE OBLIGATIONS AND COVENANTS OF EACH BORROWER HEREUNDER AND UNDER ANY
OF THE OTHER LOAN AGREEMENTS TO WHICH EACH BORROWER IS A PARTY.
5.2.13.
ERISA.
(A)
BORROWER SHALL NOT, AND SHALL CAUSE ITS ERISA AFFILIATES TO NOT,
DIRECTLY OR INDIRECTLY:
(I)
ENGAGE IN ANY TRANSACTION IN CONNECTION WITH WHICH BORROWER OR
ANY ERISA AFFILIATE COULD BE SUBJECT TO EITHER A MATERIAL CIVIL PENALTY ASSESSED
PURSUANT TO THE PROVISIONS OF SECTION 502 OF ERISA OR A MATERIAL TAX IMPOSED
UNDER THE PROVISIONS OF SECTION 4975 OF THE CODE;
(II)
TERMINATE ANY PENSION PLAN IN A "DISTRESS TERMINATION: UNDER
SECTION 4041 OF ERISA, OR TAKE ANY OTHER ACTION WHICH COULD RESULT IN A MATERIAL
LIABILITY OF BORROWER OR ANY ERISA AFFILIATE TO THE PBGC OR (Y) WITHDRAW FROM A
MULTIEMPLOYER PLAN WHERE
146
THE AMOUNT OF WITHDRAWAL LIABILITY INCURRED IN CONNECTION THEREWITH COULD
REASONABLY BE EXPECTED TO BE MATERIAL;
(III)
FAIL TO MAKE PAYMENT WHEN DUE OF ALL AMOUNTS WHICH, UNDER THE
PROVISIONS OF ANY PLAN OR MULTIEMPLOYER PLAN, THE BORROWER OR ANY ERISA
AFFILIATE IS REQUIRED TO PAY AS CONTRIBUTIONS THERETO, OR, WITH RESPECT TO ANY
PENSION PLAN, PERMIT TO EXIST ANY "ACCUMULATED FUNDING DEFICIENCY" (WITHIN THE
MEANING OF SECTION 302 OF ERISA AND SECTION 412 OF THE CODE), WHETHER OR NOT
WAIVED, WITH RESPECT THERETO; OR
(IV)
ADOPT AN AMENDMENT TO ANY PENSION PLAN REQUIRING THE PROVISION OF
SECURITY UNDER SECTION 307 OF ERISA OR SECTION 401(A)(29) OF THE CODE.
(B)
BORROWER SHALL NOT ENGAGE IN ANY TRANSACTION WHICH WOULD CAUSE ANY
OBLIGATION, OR ACTION TAKEN OR TO BE TAKEN, HEREUNDER (OR THE EXERCISE BY LENDER
OF ANY OF ITS RIGHTS UNDER THE NOTES, THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS) TO BE A NON EXEMPT (UNDER A STATUTORY OR ADMINISTRATIVE CLASS
EXEMPTION) PROHIBITED TRANSACTION UNDER ERISA.
BORROWER FURTHER COVENANTS AND
AGREES TO DELIVER TO LENDER SUCH CERTIFICATIONS OR OTHER EVIDENCE FROM TIME TO
TIME THROUGHOUT THE TERM OF THE LOAN, AS REQUESTED BY LENDER IN ITS REASONABLE
DISCRETION, THAT (I) BORROWER IS NOT AN "EMPLOYEE BENEFIT PLAN" AS DEFINED IN
SECTION 3(3) OF ERISA, WHICH IS SUBJECT TO TITLE I OF ERISA, OR A "GOVERNMENTAL
PLAN" WITHIN THE MEANING OF SECTION 3(32) OF ERISA; (II) TO BORROWER'S
KNOWLEDGE, BORROWER IS NOT IN VIOLATION OF ANY STATE STATUTE REGULATING
INVESTMENTS OF, OR FIDUCIARY OBLIGATIONS WITH RESPECT TO, GOVERNMENTAL PLANS;
AND (III) ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES IS TRUE:
(A)
EQUITY INTERESTS IN BORROWER ARE PUBLICLY OFFERED SECURITIES,
WITHIN THE MEANING OF 29 C.F.R. §2510.3 101(B)(2);
(B)
LESS THAN TWENTY FIVE PERCENT (25%) OF EACH OUTSTANDING CLASS OF
EQUITY INTERESTS IN BORROWER IS HELD BY "BENEFIT PLAN INVESTORS" WITHIN THE
MEANING OF 29 C.F.R. §2510.3 101(F)(2); OR
(C)
BORROWER QUALIFIES AS AN "OPERATING COMPANY" OR