AND FOR WHICH APPROPRIATE PROVISION HAS BEEN MADE IN
ACCORDANCE WITH GAAP; PROVIDED, THAT, SOLELY FOR PURPOSES OF SECTION 6.2(A),
THIS SECTION 3.9(B) SHALL BE QUALIFIED BY THE KNOWLEDGE OF SELLER.
(C)
SELLER AND ITS AFFILIATES HAVE EACH WITHHELD FROM THEIR RESPECTIVE
EMPLOYEES, INDEPENDENT CONTRACTORS, CREDITORS, STOCKHOLDERS AND THIRD PARTIES
AND TIMELY PAID TO THE APPROPRIATE TAXING AUTHORITY PROPER AND ACCURATE AMOUNTS
IN ALL MATERIAL RESPECTS FOR ALL TAXABLE PERIODS, OR PORTIONS THEREOF, ENDING ON
OR BEFORE THE CLOSING DATE IN COMPLIANCE WITH ALL TAX WITHHOLDING AND REMITTING
PROVISIONS OF APPLICABLE LAWS AND HAVE EACH COMPLIED IN ALL MATERIAL RESPECTS
WITH ALL WITHHOLDING TAX INFORMATION REPORTING PROVISIONS OF ALL APPLICABLE
LAWS; PROVIDED, THAT, SOLELY FOR PURPOSES OF SECTION 6.2(A), THIS
SECTION 3.9(C) SHALL BE QUALIFIED BY THE KNOWLEDGE OF SELLER.
(D)
NONE OF THE TRANSFERRED ASSETS: (I) IS PROPERTY REQUIRED TO BE
TREATED AS BEING OWNED BY ANOTHER PERSON PURSUANT TO THE PROVISIONS OF
SECTION 168(F)(8) OF THE INTERNAL REVENUE CODE OF 1954, AS AMENDED AND IN EFFECT
IMMEDIATELY PRIOR TO THE ENACTMENT OF THE TAX REFORM ACT OF 1986,
(II) CONSTITUTES "TAX-EXEMPT USE PROPERTY" WITHIN THE MEANING OF
SECTION 168(H)(1) OF THE CODE OR (III) IS "TAX-EXEMPT BOND FINANCED PROPERTY"
WITHIN THE MEANING OF SECTION 168(G)(5) OF THE CODE.
SECTION 3.10
EMPLOYEE BENEFITS.
(A)
ALL BENEFIT AND COMPENSATION PLANS, PROGRAMS, CONTRACTS, POLICIES,
AGREEMENTS OR ARRANGEMENTS, INCLUDING ANY TRUSTS (INCLUDING ANY TRUSTS REQUIRED
IN THE
67
FUTURE AS A RESULT OF THE TRANSACTION OR OTHERWISE), TRUST INSTRUMENTS, FUNDING
ARRANGEMENTS OR INSURANCE CONTRACTS, ANY "EMPLOYEE BENEFIT PLANS" WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, INCLUDING ANY MULTIEMPLOYER PENSION PLANS
WITHIN THE MEANING OF SECTION 3(37) OF ERISA (EACH, A "MULTIEMPLOYER PLAN"), ANY
PENSION, PROFIT-SHARING, SAVINGS, RETIREMENT, DEFERRED COMPENSATION, STOCK
OPTION, STOCK PURCHASE, STOCK APPRECIATION RIGHTS, STOCK BASED, INCENTIVE,
BONUS, WORKERS' COMPENSATION, SHORT TERM DISABILITY, SICK LEAVE, GROUP
INSURANCE, HOSPITALIZATION, MEDICAL, DENTAL, LIFE, CAFETERIA OR FLEXIBLE
SPENDING, VACATION, CONTINUITY, SALE BONUS, RETENTION, FRINGE BENEFIT, EMPLOYEE
LOAN AND SEVERANCE PLANS AND ALL EMPLOYMENT, COLLECTIVE BARGAINING, CONSULTING,
SEVERANCE AND CHANGE IN CONTROL AGREEMENTS, PLANS, POLICIES, PROGRAMS OR
ARRANGEMENTS WHETHER FORMAL OR INFORMAL, WRITTEN OR ORAL, AND ALL AMENDMENTS
THERETO, UNDER WHICH (I) ANY EMPLOYEE, DIRECTOR OR CONSULTANT OF SELLER OR ANY
OF ITS AFFILIATES HAS ANY PRESENT OR FUTURE RIGHT TO BENEFITS AND WHICH ARE
CONTRIBUTED TO, SPONSORED BY OR MAINTAINED BY SELLER OR ANY OF ITS AFFILIATES,
OR (II) SELLER OR ANY OF ITS ERISA AFFILIATES HAS ANY PRESENT OR FUTURE
LIABILITY (WHETHER CONTINGENT OR OTHERWISE) (THE "BENEFIT PLANS"), ARE LISTED ON
SCHEDULE 3.10(A) OF THE SELLER DISCLOSURE SCHEDULE. EACH BENEFIT PLAN WHICH IS
INTENDED TO BE QUALIFIED UNDER SECTION 401(A) OF THE CODE HAS RECEIVED A
FAVORABLE DETERMINATION LETTER FROM THE INTERNAL REVENUE SERVICE NATIONAL OFFICE
AND HAS BEEN SEPARATELY IDENTIFIED. SELLER HAS PROVIDED OR MADE AVAILABLE TO
BUYER TRUE AND COMPLETE COPIES OF ALL BENEFIT PLANS (OR WITH RESPECT TO ANY
INDIVIDUAL EMPLOYMENT AGREEMENTS SHALL PROVIDE SUCH AGREEMENTS TO BUYER NO LATER
THAN FOURTEEN BUSINESS DAYS FOLLOWING THE DATE