OR
CONTROL OF ANY OF THEM, REVIEWS AND AUDITS AND ALL WRITTEN INFORMATION
PERTAINING TO ACTUAL OR POTENTIAL ENVIRONMENTAL LIABILITIES, IN EACH CASE
RELATING TO BORROWER OR ANY OF ITS SUBSIDIARIES.
(B)
BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT
AGENT (I) IS NOT NOW IN CONTROL OF ANY OF THE REAL ESTATE OR ENVIRONMENTAL
AFFAIRS OF BORROWER OR ITS SUBSIDIARIES, (II) TO THE BEST OF BORROWER'S
KNOWLEDGE, BEFORE THE POSSESSION OR CONTROL BY BORROWER OR ITS SUBSIDIARIES OF
SUCH REAL ESTATE OR ENVIRONMENTAL AFFAIRS, AGENT WAS NOT IN CONTROL OF ANY SUCH
REAL ESTATE OF ENVIRONMENTAL AFFAIRS AND (III) DOES NOT HAVE THE CAPACITY
THROUGH THE PROVISIONS OF THE LOAN DOCUMENTS OR OTHERWISE TO CONTROL BORROWER'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.
40
5.14.
ERISA.
(A)
SCHEDULE 5.14 LISTS ALL PLANS AND SEPARATELY
IDENTIFIES ALL PENSION PLANS, INCLUDING TITLE IV PLANS, MULTIEMPLOYER PLANS,
ESOPS AND WELFARE PLANS, INCLUDING ALL RETIREE WELFARE PLANS.
EXCEPT WITH
RESPECT TO MULTIEMPLOYER PLANS, EACH QUALIFIED PLAN HAS BEEN DETERMINED BY THE
IRS TO QUALIFY UNDER SECTION 401 OF THE IRC, THE TRUSTS CREATED THEREUNDER HAVE
BEEN DETERMINED TO BE EXEMPT FROM TAX UNDER THE PROVISIONS OF SECTION 501 OF THE
IRC, AND NOTHING HAS OCCURRED THAT COULD REASONABLY BE EXPECTED TO CAUSE THE
LOSS OF SUCH QUALIFICATION OR TAX-EXEMPT STATUS.
EACH PLAN OTHER THAN A
MULTIEMPLOYER PLAN, IS, AND TO THE KNOWLEDGE OF BORROWER EACH MULTIEMPLOYER PLAN
IS, IN COMPLIANCE IN ALL MATERIAL RESPECTS, WITH THE APPLICABLE PROVISIONS OF
ERISA AND THE IRC, INCLUDING THE TIMELY FILING OF ALL REPORTS REQUIRED UNDER THE
IRC OR ERISA, INCLUDING THE STATEMENT REQUIRED BY 29 CFR SECTION 2520.104-23.
NEITHER BORROWER NOR ANY ERISA AFFILIATE HAS FAILED IN OTHER THAN A DE MINIMIS
RESPECT, 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 SUCH PLAN.
NEITHER BORROWER NOR ANY ERISA AFFILIATE HAS ENGAGED IN A "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 BORROWER, THREATENED CLAIMS (OTHER THAN CLAIMS FOR BENEFITS IN
THE NORMAL COURSE), SANCTIONS, ACTIONS OR LAWSUITS, ASSERTED OR INSTITUTED
AGAINST ANY PLAN (OTHER THAN A MULTIEMPLOYER PLAN) OR ANY PERSON AS FIDUCIARY OR
SPONSOR OF ANY PLAN; (IV) NO CREDIT PARTY OR ERISA AFFILIATE HAS INCURRED OR
REASONABLY EXPECTS TO INCUR ANY LIABILITY AS A