its respective properties, income or assets to the extent the same have
become due and payable, except those which are not yet delinquent or which are
being contested in good faith and with respect to which a reserve has been
established in accordance with GAAP.
There is no proposed tax assessment
action, suit, proceeding, investigation, audit or claim now pending or, to the
best knowledge of Company, threatened against Company, any of its Subsidiaries
or any Consolidated Corporation that could reasonably be expected to have a
Material Adverse Effect.
5.9
Use of Proceeds; Governmental Regulation.
A.
ALL PROCEEDS OF THE INITIAL TERM LOANS WILL BE USED BY COMPANY TO
FINANCE THE CLOSING DATE REFINANCING, TO REPURCHASE OR REDEEM ALL REMAINING
EXISTING SENIOR SUBORDINATED NOTES NOT REPURCHASED ON THE CLOSING DATE AND TO
PAY FEES AND EXPENSES INCURRED IN CONNECTION WITH THE TRANSACTION.
B.
ALL PROCEEDS OF THE REVOLVING LOANS AND THE SWING LINE LOANS WILL
BE USED FOR THE WORKING CAPITAL AND GENERAL CORPORATE PURPOSES OF COMPANY AND
ITS SUBSIDIARIES; PROVIDED THAT (X) NO PROCEEDS FROM REVOLVING LOANS AND SWING
LINE LOANS MAY BE USED FOR THE PURPOSES DESCRIBED IN SECTION 5.9A AND (Y) THE
PROCEEDS OF SWING LINE LOANS SHALL NOT BE USED TO REFINANCE THEN OUTSTANDING
SWING LINE LOANS.
C.
ALL PROCEEDS OF THE INCREMENTAL TERM LOANS SHALL BE UTILIZED FOR
GENERAL CORPORATE PURPOSES OF COMPANY AND ITS SUBSIDIARIES.
D.
NO PART OF ANY FUNDING OF LOANS OR ISSUANCE OF LETTERS OF CREDIT
(OR THE PROCEEDS THEREOF) WILL BE USED TO PURCHASE OR CARRY ANY MARGIN STOCK OR
TO EXTEND CREDIT FOR THE PURPOSE OF PURCHASING OR CARRYING ANY MARGIN STOCK, IN
VIOLATION OF REGULATION U.
NEITHER THE MAKING OF ANY EXTENSION OF CREDIT
HEREUNDER, NOR USE OF ANY OF THE PROCEEDS THEREOF, WILL VIOLATE OR BE
INCONSISTENT WITH THE PROVISIONS OF REGULATION T, U OR X OF THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM.
E.
NEITHER COMPANY NOR ANY OF ITS SUBSIDIARIES IS AN "INVESTMENT
COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
5.10
Employee Benefit Plans.
A.
SCHEDULE 5.10A SET FORTH EACH PENSION PLAN AND MULTIEMPLOYER PLAN
AS OF THE CLOSING DATE.
COMPANY AND EACH OF ITS SUBSIDIARIES ARE IN COMPLIANCE
WITH ALL APPLICABLE PROVISIONS OF ERISA, THE INTERNAL REVENUE CODE AND OTHER
APPLICABLE FEDERAL, STATE OR FOREIGN LAW WITH RESPECT TO EACH PLAN, AND HAVE
PERFORMED ALL OF THEIR OBLIGATIONS UNDER EACH PLAN, EXCEPT TO THE EXTENT THAT
FAILURE TO COMPLY, INDIVIDUALLY OR IN THE AGGREGATE, WOULD NOT REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
COMPANY AND EACH OF ITS
SUBSIDIARIES HAVE MADE ALL REQUIRED CONTRIBUTIONS TO ANY PENSION PLAN, EXCEPT TO
THE EXTENT THAT A FAILURE TO DO SO WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, AND NO APPLICATION FOR
A FUNDING WAIVER OR AN EXTENSION OF ANY AMORTIZATION PERIOD PURSUANT TO
SECTION 412 OF THE INTERNAL REVENUE CODE HAS BEEN MADE WITH RESPECT TO ANY