has set aside on its books
adequate reserves, and as to which no Lien has arisen, or (b) to the extent that
the failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10
ERISA; No Canadian Plans.
(A)
EACH PLAN AND EACH GUARANTEED PENSION PLAN HAS BEEN MAINTAINED AND
OPERATED IN COMPLIANCE WITH THE PROVISIONS OF ERISA AND, TO THE EXTENT
APPLICABLE, THE CODE, INCLUDING BUT NOT LIMITED TO THE PROVISIONS THEREUNDER
RESPECTING PROHIBITED TRANSACTIONS AND THE BONDING OF FIDUCIARIES AND OTHER
PERSONS HANDLING PLAN FUNDS AS REQUIRED BY §412 OF ERISA, EXCEPT WHERE THE
FAILURE TO SO COMPLY WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
THE BORROWERS HAVE HERETOFORE DELIVERED TO THE ADMINISTRATIVE AGENT THE
MOST RECENTLY COMPLETED, PRIOR TO THE DATE HEREOF, ANNUAL REPORT, FORM 5500,
WITH ALL REQUIRED ATTACHMENTS, AND ACTUARIAL STATEMENT REQUIRED TO BE SUBMITTED
UNDER §103(D) OF ERISA, WITH RESPECT TO EACH GUARANTEED PENSION PLAN.
(B)
UNDER EACH PLAN WHICH IS AN EMPLOYEE WELFARE BENEFIT PLAN WITHIN
THE MEANING OF §3(1) OR §3(2)(B) OF ERISA, NO BENEFITS ARE DUE UNLESS THE EVENT
GIVING RISE TO THE BENEFIT ENTITLEMENT OCCURS PRIOR TO PLAN TERMINATION (EXCEPT
AS REQUIRED BY TITLE I, PART 6 OF ERISA).
ONE OF THE LOAN PARTIES OR AN ERISA
AFFILIATE, AS APPROPRIATE, MAY TERMINATE EACH SUCH PLAN AT ANY TIME (OR AT ANY
TIME SUBSEQUENT TO THE EXPIRATION OF ANY APPLICABLE BARGAINING AGREEMENT) IN
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THE DISCRETION OF SUCH LOAN PARTY OR SUCH ERISA AFFILIATE WITHOUT LIABILITY TO
ANY PERSON, EXCEPT FOR BENEFIT ENTITLEMENTS WHICH HAVE ACCRUED PRIOR TO SUCH
TERMINATION.
(C)
EACH CONTRIBUTION REQUIRED TO BE MADE TO A GUARANTEED PENSION
PLAN, WHETHER REQUIRED TO BE MADE TO AVOID THE INCURRENCE OF AN ACCUMULATED
FUNDING DEFICIENCY, THE NOTICE OR LIEN PROVISIONS OF §302(F) OF ERISA, OR
OTHERWISE, HAS BEEN TIMELY MADE.
NO WAIVER OF AN ACCUMULATED FUNDING DEFICIENCY
OR EXTENSION OF AMORTIZATION PERIODS HAS BEEN RECEIVED WITH RESPECT TO ANY
GUARANTEED PENSION PLAN, AND NONE OF THE LOAN PARTIES NOR ANY ERISA AFFILIATE IS
OBLIGATED TO OR HAS POSTED SECURITY IN CONNECTION WITH AN AMENDMENT TO A
GUARANTEED PENSION PLAN PURSUANT TO §307 OF ERISA OR §401(A)(29) OF THE CODE.
NO LIABILITY TO THE PBGC (OTHER THAN REQUIRED INSURANCE PREMIUMS, ALL OF WHICH
HAVE BEEN PAID) HAS BEEN INCURRED BY ANY LOAN PARTY OR ANY ERISA AFFILIATE WITH
RESPECT TO ANY GUARANTEED PENSION PLAN AND THERE HAS NOT BEEN ANY ERISA EVENT
(OTHER THAN AN ERISA EVENT AS TO WHICH THE REQUIREMENT OF THIRTY (30) DAYS
NOTICE HAS BEEN WAIVED), OR ANY OTHER EVENT OR CONDITION WHICH PRESENTS A
MATERIAL RISK OF TERMINATION OF ANY GUARANTEED PENSION PLAN BY THE PBGC.
BASED
ON THE LATEST VALUATION OF EACH GUARANTEED PENSION PLAN (WHICH IN EACH CASE
OCCURRED WITHIN TWELVE MONTHS OF THE DATE OF THIS REPRESENTATION), AND ON THE
ACTUARIAL METHODS AND ASSUMPTIONS EMPLOYED FOR THAT VALUATION, THE AGGREGATE
BENEFIT LIABILITIES OF ALL SUCH GUARANTEED PENSION PLANS WITHIN THE MEANING