FULFILLED AND PERFORMED ITS
OBLIGATIONS UNDER EACH OF THE MATERIAL CONTRACTS, AND NO SELLER HAS RECEIVED
WRITTEN NOTICE THAT IT IS IN BREACH OR DEFAULT THEREUNDER.
SCHEDULE 5.12(B) SETS FORTH A LIST OF EACH MATERIAL CONTRACT TO WHICH A
NON-DEBTOR SELLER IS A PARTY OR BY WHICH ANY NON-DEBTOR SELLER IS BOUND WHICH BY
ITS TERMS REQUIRES THE CONSENT, APPROVAL OR WAIVER OF THE OTHER PARTY THERETO IN
ORDER TO BE ASSIGNED.
5.13
Employee Benefits.
(A)
SCHEDULE 5.13(A) LISTS ALL EMPLOYEE BENEFIT PLANS.
FOR PURPOSES
OF THIS AGREEMENT, THE TERM "EMPLOYEE BENEFIT PLANS" MEANS ANY EMPLOYEE BENEFIT
PLAN AS DEFINED IN
36
SECTION 3(3) OF ERISA, AND ALL OTHER MATERIAL EMPLOYEE BENEFIT OR COMPENSATION
ARRANGEMENTS OR PAYROLL PRACTICES, INCLUDING, BONUS PLANS, CONSULTING OR OTHER
COMPENSATION AGREEMENTS, INCENTIVE, EQUITY OR EQUITY-BASED COMPENSATION, OR
DEFERRED COMPENSATION ARRANGEMENTS, STOCK PURCHASE, SEVERANCE PAY, SICK LEAVE,
VACATION PAY, SALARY CONTINUATION, DISABILITY, HOSPITALIZATION, MEDICAL
INSURANCE, LIFE INSURANCE, SCHOLARSHIP PROGRAMS MAINTAINED BY ANY SELLER OR TO
WHICH ANY SELLER CONTRIBUTED OR IS OBLIGATED TO CONTRIBUTE THEREUNDER FOR
CURRENT OR FORMER EMPLOYEES OF THE ANY SELLER.
(B)
TRUE, CORRECT AND COMPLETE COPIES OF THE FOLLOWING DOCUMENTS, WITH
RESPECT TO EACH OF THE EMPLOYEE BENEFIT PLANS HAVE BEEN MADE AVAILABLE TO
PURCHASER (A) ANY PLANS AND RELATED TRUST DOCUMENTS, AND ALL AMENDMENTS THERETO,
(B) THE MOST RECENT FORMS 5500 FOR THE PAST THREE (3) YEARS AND SCHEDULES
THERETO, (C) THE MOST RECENT FINANCIAL STATEMENTS AND ACTUARIAL VALUATIONS FOR
THE PAST THREE (3) YEARS, (D) THE MOST RECENT IRS DETERMINATION LETTER AND
(E) THE MOST RECENT SUMMARY PLAN DESCRIPTIONS (INCLUDING LETTERS OR OTHER
DOCUMENTS UPDATING SUCH DESCRIPTIONS).
(C)
EACH OF THE EMPLOYEE BENEFIT PLANS INTENDED TO QUALIFY UNDER
SECTION 401 OF THE CODE ("QUALIFIED PLANS") HAS BEEN DETERMINED BY THE IRS TO BE
SO QUALIFIED, AND, EXCEPT AS DISCLOSED ON SCHEDULE 5.13(C), TO THE KNOWLEDGE OF
SELLERS, NOTHING HAS OCCURRED WITH RESPECT TO THE OPERATION OF ANY SUCH PLAN
WHICH COULD REASONABLY BE EXPECTED TO RESULT IN THE REVOCATION OF SUCH FAVORABLE
DETERMINATION LETTER.
THERE ARE NO ACTIONS, SUITS OR CLAIMS (OTHER THAN ROUTINE
CLAIMS FOR BENEFITS) PENDING OR, TO THE KNOWLEDGE OF SELLERS, THREATENED
INVOLVING SUCH QUALIFIED PLANS OR THE ASSETS OF SUCH PLANS OTHER THAN SUCH
ACTIONS, SUITS OR CLAIMS WHICH HAVE NOT HAD AND WOULD NOT REASONABLY BE EXPECTED
TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, AN OPCO MATERIAL ADVERSE EFFECT.
(D)
ALL CONTRIBUTIONS AND PREMIUMS REQUIRED BY LAW OR BY THE TERMS OF
ANY EMPLOYEE BENEFIT PLAN OR ANY AGREEMENT RELATING THERETO HAVE BEEN TIMELY
MADE (TAKING INTO ACCOUNT ANY WAIVERS GRANTED WITH RESPECT THERETO) TO ANY FUNDS
OR TRUSTS ESTABLISHED THEREUNDER OR IN CONNECTION THEREWITH IN ALL MATERIAL
RESPECTS.
(E)
NEITHER ANY SELLER, NOR ANY TRADE OR BUSINESS (WHETHER OR NOT
INCORPORATED) WHICH IS UNDER COMMON CONTROL, OR WHICH IS TREATED AS A SINGLE
EMPLOYER, WITH ANY SELLER UNDER SECTION 414(B), (C), (M) OR (O) OF THE CODE,
HAVE INCURRED ANY LIABILITY UNDER TITLE IV OF ERISA OR SECTION 412 OF THE CODE.
(F)