RETURNS AND REPORTS REQUIRED TO HAVE BEEN
FILED BY IT AND HAS PAID OR CAUSED TO BE PAID ALL TAXES REQUIRED TO HAVE BEEN
PAID BY IT, EXCEPT (A) TAXES THAT ARE BEING CONTESTED IN GOOD FAITH BY
APPROPRIATE PROCEEDINGS, FOR WHICH SUCH LOAN PARTY OR APPLICABLE SUBSIDIARY HAS
SET ASIDE ON ITS BOOKS ADEQUATE RESERVES OR (B) TO THE EXTENT THAT THE FAILURE
TO DO SO WOULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT.
SECTION 5.10.
ERISA.
(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 AND OTHER APPLICABLE LAWS, INCLUDING 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 BORROWER HAS 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).
THE BORROWER 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 THE
DISCRETION OF THE BORROWER 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 SATISFY THE MINIMUM FUNDING STANDARD, THE NOTICE OR
SECURITY PROVISIONS OF §302(C) OF ERISA, OR OTHERWISE, HAS BEEN TIMELY MADE.
NO
WAIVER OF THE MINIMUM FUNDING STANDARD HAS BEEN RECEIVED WITH RESPECT TO ANY
GUARANTEED PENSION PLAN.
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 30 DAYS NOTICE HAS BEEN WAIVED), OR ANY OTHER EVENT OR CONDITION
WHICH PRESENTS A MATERIAL RISK OF
38
TERMINATION OF ANY GUARANTEED PENSION PLAN BY THE PBGC OR THAT WOULD REASONABLY
BE EXPECTED TO RESULT IN A MATERIAL LIABILITY TO ANY LOAN PARTY.
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