OF THE CONTROLLED
GROUP NOR ANY FIDUCIARY OF, NOR ANY TRUSTEE TO, ANY PLAN, HAS ENGAGED IN A
"PROHIBITED TRANSACTION" DESCRIBED IN SECTION 406 OF THE ERISA OR SECTION 4975
OF THE CODE NOR TAKEN ANY ACTION WHICH WOULD CONSTITUTE OR RESULT IN A
TERMINATION EVENT WITH RESPECT TO ANY SUCH PLAN WHICH IS SUBJECT TO ERISA; (IX)
BORROWER AND EACH MEMBER OF THE CONTROLLED GROUP HAS MADE ALL CONTRIBUTIONS DUE
AND PAYABLE WITH RESPECT TO EACH PLAN; (X) THERE EXISTS NO EVENT DESCRIBED IN
SECTION 4043(B) OF ERISA, FOR WHICH THE THIRTY (30) DAY NOTICE PERIOD HAS NOT
BEEN WAIVED; (XI) NEITHER BORROWER NOR ANY MEMBER OF THE CONTROLLED GROUP HAS
ANY FIDUCIARY RESPONSIBILITY FOR INVESTMENTS WITH RESPECT TO ANY PLAN EXISTING
FOR THE BENEFIT OF PERSONS OTHER THAN EMPLOYEES OR FORMER EMPLOYEES OF BORROWER
AND ANY MEMBER OF THE CONTROLLED GROUP; (XII) NEITHER BORROWER NOR ANY MEMBER OF
THE CONTROLLED GROUP MAINTAINS OR CONTRIBUTES TO ANY PLAN WHICH PROVIDES HEALTH,
ACCIDENT OR LIFE INSURANCE BENEFITS TO FORMER EMPLOYEES, THEIR SPOUSES OR
DEPENDENTS, OTHER THAN IN ACCORDANCE WITH SECTION 4980B OF THE CODE; (XIII)
NEITHER BORROWER NOR ANY MEMBER OF THE CONTROLLED GROUP HAS WITHDRAWN,
COMPLETELY OR PARTIALLY, FROM ANY MULTIEMPLOYER PLAN SO AS TO INCUR LIABILITY
UNDER THE MULTIEMPLOYER PENSION PLAN AMENDMENTS ACT OF 1980 AND THERE EXISTS NO
FACT WHICH WOULD REASONABLY BE EXPECTED TO RESULT IN ANY SUCH LIABILITY; AND
(XIV) NO PLAN FIDUCIARY (AS DEFINED IN SECTION 3(21) OF ERISA) HAS ANY LIABILITY
FOR BREACH OF FIDUCIARY DUTY OR FOR ANY FAILURE IN CONNECTION WITH THE
ADMINISTRATION OR INVESTMENT OF THE ASSETS OF A PLAN.
4.9
LICENSES AND PERMITS. EXCEPT AS SET FORTH IN SCHEDULE 4.9,
BORROWER (A) IS IN COMPLIANCE WITH AND (B) HAS PROCURED AND IS NOW IN POSSESSION
OF, ALL MATERIAL LICENSES OR PERMITS REQUIRED BY ANY APPLICABLE FEDERAL, STATE
OR LOCAL LAW, RULE OR REGULATION FOR THE OPERATION OF ITS BUSINESS IN EACH
JURISDICTION WHEREIN IT IS NOW CONDUCTING OR PROPOSES TO CONDUCT BUSINESS AND
WHERE THE FAILURE TO PROCURE SUCH LICENSES OR PERMITS COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
4.10
DEFAULT OF INDEBTEDNESS. BORROWER IS NOT IN DEFAULT IN THE PAYMENT
OF THE PRINCIPAL OF OR INTEREST ON ANY INDEBTEDNESS OR UNDER ANY INSTRUMENT OR
AGREEMENT UNDER OR SUBJECT TO WHICH ANY INDEBTEDNESS HAS BEEN ISSUED AND NO
EVENT HAS OCCURRED UNDER THE PROVISIONS OF ANY SUCH INSTRUMENT OR AGREEMENT
WHICH WITH OR WITHOUT THE LAPSE OF TIME OR THE GIVING OF NOTICE, OR BOTH,
CONSTITUTES OR WOULD CONSTITUTE AN EVENT OF DEFAULT THEREUNDER.
4.11
NO DEFAULT. BORROWER IS NOT IN DEFAULT IN THE PAYMENT OR
PERFORMANCE OF ANY OF ITS CONTRACTUAL OBLIGATIONS AND NO DEFAULT HAS OCCURRED
THAT COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
16
4.12
NO BURDENSOME RESTRICTIONS. BORROWER IS NOT PARTY TO ANY CONTRACT
OR AGREEMENT THE PERFORMANCE OF WHICH COULD HAVE A MATERIAL ADVERSE EFFECT.
BORROWER HAS HERETOFORE DELIVERED TO BRASCAN TRUE AND COMPLETE COPIES OF ALL