HEREBY ACKNOWLEDGES AND AGREES THAT
AGENT (I) IS NOT NOW, AND HAS NOT EVER BEEN, IN CONTROL OF ANY OF THE REAL
ESTATE OR AFFAIRS OF HOLDINGS OR ITS SUBSIDIARIES AND (II) DOES NOT HAVE THE
CAPACITY THROUGH THE PROVISIONS OF THE LOAN DOCUMENTS OR OTHERWISE TO INFLUENCE
HOLDING'S OR ITS SUBSIDIARIES' CONDUCT WITH RESPECT TO THE OWNERSHIP, OPERATION
OR MANAGEMENT OF ANY OF THEIR REAL ESTATE OR COMPLIANCE WITH ENVIRONMENTAL LAWS
OR ENVIRONMENTAL PERMITS.
5.14
ERISA; FOREIGN PENSION PLANS.
(A)
SCHEDULE 5.14 LISTS ALL MATERIAL PLANS AND MATERIAL FOREIGN
PENSION PLANS THAT ARE SPONSORED OR MAINTAINED BY ANY CREDIT PARTY AND ALL TITLE
IV PLANS, MULTIEMPLOYER PLANS THAT ANY CREDIT PARTY OR ERISA AFFILIATE
CONTRIBUTES TO, SPONSORS OR MAINTAINS.
COPIES OF ALL TITLE IV PLANS, TOGETHER
WITH A COPY OF THE LATEST FORM 5500-SERIES REPORT FOR EACH SUCH TITLE IV PLAN
HAVE BEEN MADE AVAILABLE TO AGENT.
EXCEPT WITH RESPECT TO MULTIEMPLOYER PLANS,
EACH QUALIFIED PLAN HAS RECEIVED A FAVORABLE DETERMINATION FROM THE IRS, IS
MAINTAINED UNDER A PROTOTYPE PLAN AND MAY RELY UPON A FAVORABLE OPINION LETTER
ISSUED BY THE IRS WITH RESPECT TO SUCH PROTOTYPE PLAN, OR IS WITHIN THE
APPLICABLE REMEDIAL AMENDMENT PERIOD.
EXCEPT AS WOULD NOT BE REASONABLY
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT: (I) EACH PLAN IS IN COMPLIANCE
48
WITH THE APPLICABLE PROVISIONS OF ERISA AND THE IRC, (II) NEITHER ANY CREDIT
PARTY NOR ERISA AFFILIATE HAS FAILED TO MAKE ANY CONTRIBUTION OR PAY ANY AMOUNT
DUE AS REQUIRED BY EITHER SECTION 412 OF THE IRC OR SECTION 302 OF ERISA OR THE
TERMS OF ANY TITLE IV PLAN AND (III) NEITHER ANY CREDIT PARTY NOR ERISA
AFFILIATE HAS ENGAGED IN A NON-EXEMPT "PROHIBITED TRANSACTION," AS DEFINED IN
SECTION 406 OF ERISA AND SECTION 4975 OF THE IRC, IN CONNECTION WITH ANY PLAN,
THAT WOULD SUBJECT ANY CREDIT PARTY TO A MATERIAL TAX ON PROHIBITED TRANSACTIONS
IMPOSED BY SECTION 502(I) OF ERISA OR SECTION 4975 OF THE IRC.
(B)
EXCEPT AS SET FORTH IN SCHEDULE 5.14: (I) NO TITLE IV PLAN HAS ANY
UNFUNDED PENSION LIABILITY; (II) NO ERISA EVENT OR EVENT DESCRIBED IN SECTION
4062(E) OF ERISA WITH RESPECT TO ANY TITLE IV PLAN HAS OCCURRED OR IS REASONABLY
EXPECTED TO OCCUR; (III) THERE ARE NO PENDING, OR TO THE KNOWLEDGE OF ANY
RESPONSIBLE OFFICER OF BORROWER, THREATENED CLAIMS (OTHER THAN CLAIMS FOR
BENEFITS IN THE NORMAL COURSE), SANCTIONS, ACTIONS OR LAWSUITS, ASSERTED OR
INSTITUTED AGAINST ANY PLAN OR ANY PERSON AS FIDUCIARY OR SPONSOR OF ANY PLAN
THAT COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; (IV) NO
CREDIT PARTY OR ERISA AFFILIATE HAS INCURRED OR REASONABLY EXPECTS TO INCUR A
MATERIAL LIABILITY AS A RESULT OF A COMPLETE OR PARTIAL WITHDRAWAL FROM A
MULTIEMPLOYER PLAN; AND (V) WITHIN THE LAST FIVE YEARS NO TITLE IV PLAN OF ANY
CREDIT PARTY OR ERISA AFFILIATE HAS BEEN TERMINATED, WHETHER OR NOT IN A
"STANDARD TERMINATION" AS THAT TERM IS USED IN SECTION 4041(B)(1) OF ERISA.
(C)
(I)
EXCEPT