TO THE KNOWLEDGE OF ANY BORROWER, NOTHING HAS OCCURRED THAT WOULD CAUSE THE
LOSS OF SUCH QUALIFICATION OR TAX-EXEMPT STATUS. EXCEPT FOR NONCOMPLIANCE TO THE
EXTENT PERMITTED UNDER THE BANKRUPTCY CODE, EACH PLAN IS IN COMPLIANCE IN ALL
MATERIAL RESPECTS BOTH WITH ITS TERMS AND WITH THE APPLICABLE PROVISIONS OF
ERISA AND THE IRC. EACH BORROWER AND ALL ERISA AFFILIATES HAVE MADE ALL
CONTRIBUTIONS AND PAID ALL AMOUNTS DUE AS REQUIRED UNDER THE TERMS OF THE PLAN
OR BY EITHER SECTION 412, 430, 431 OR 432 OF THE IRC OR SECTION 302, 303, 304 OR
305 OF ERISA PRIOR TO THE DATE OF COMMENCEMENT OF THE CASES.
(B)
NONE OF THE BORROWERS NOR ANY ERISA AFFILIATE, NOR ANY PREDECESSOR
OF ANY SUCH PERSON SPONSORS, MAINTAINS OR CONTRIBUTES TO, OR HAS IN THE PAST
SPONSORED, MAINTAINED OR CONTRIBUTED TO A TITLE IV PLAN, OR OTHERWISE HAS OR IN
THE PAST HAS HAD ANY LIABILITY OR OBLIGATION WITH RESPECT OF A TITLE IV PLAN
THAT CAN BE ENFORCED AGAINST THE BORROWER OR ANY ERISA AFFILIATE.
EXCEPT AS SET
FORTH IN DISCLOSURE SCHEDULE 3.12(B) OR WHICH WOULD REASONABLY BE EXPECTED NOT
TO HAVE A MATERIAL ADVERSE EFFECT, (I) NO ERISA EVENT HAS OCCURRED OR IS
REASONABLY EXPECTED TO OCCUR; (II) THERE ARE NO PENDING, OR TO THE KNOWLEDGE OF
ANY BORROWER, THREATENED, MATERIAL CLAIMS (OTHER THAN CLAIMS FOR BENEFITS IN THE
NORMAL COURSE), SANCTIONS, ACTIONS OR LAWSUITS, ASSERTED OR INSTITUTED AGAINST
ANY PLAN OR ANY FIDUCIARY OR SPONSOR THEREOF OR ANY BORROWER WITH RESPECT TO ANY
PLAN; AND (III) EXCEPT IN THE CASE OF ANY ESOP, STOCK OF ALL BORROWERS AND THEIR
ERISA AFFILIATES MAKES UP, IN THE AGGREGATE, NO MORE THAN 10% OF THE FAIR MARKET
VALUE OF THE ASSETS OF ANY PLAN MEASURED ON THE BASIS OF FAIR MARKET VALUE AS OF
THE LATEST VALUATION DATE OF ANY PLAN.
(C)
WITH RESPECT TO ANY MULTIEMPLOYER PLAN, (I) AS OF THE DATE OF THIS
AGREEMENT, NEITHER ANY BORROWER NOR ANY ERISA AFFILIATE HAS MADE OR SUFFERED A
"COMPLETE WITHDRAWAL" OR A "PARTIAL WITHDRAWAL" (AS RESPECTIVELY DEFINED IN
SECTIONS 4203 AND 4205 OF ERISA), (II) AS OF THE DATE OF THIS AGREEMENT, NO
EVENT HAS OCCURRED THAT PRESENTS A MATERIAL RISK OF A PARTIAL WITHDRAWAL OTHER
THAN IN CONNECTION WITH THE COMMENCEMENT OF THE CASES, (III) NEITHER ANY
BORROWER NOR ANY ERISA AFFILIATE HAS ANY CONTINGENT LIABILITY UNDER SECTION 4204
OF ERISA, AND, TO THE KNOWLEDGE OF ANY BORROWER, NO CIRCUMSTANCES EXIST THAT
PRESENT A
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MATERIAL RISK THAT ANY SUCH MULTIEMPLOYER PLAN WILL GO INTO REORGANIZATION, AND
(IV) AS OF THE DATE OF THIS AGREEMENT AND AS OF ANY DATE THAT A LOAN IS MADE,
NEITHER ANY BORROWER NOR ANY ERISA AFFILIATE WOULD INCUR WITHDRAWAL LIABILITY IN
EXCESS OF $1,000,000 IN THE AGGREGATE IF A COMPLETE WITHDRAWAL BY THE BORROWERS
AND THE ERISA AFFILIATES OCCURRED UNDER EACH MULTIEMPLOYER PLAN AS OF SUCH
DATE.
NO MULTIEMPLOYER PLAN HAS INCURRED AN ACCUMULATED FUNDING DEFICIENCY,
WHETHER OR NOT WAIVED THAT COULD REASONABLY BE EXPECTED