IS MADE OR DEEMED MADE.
TO THE ACTUAL KNOWLEDGE OF
THE OTHER ENTITIES, NO SUCH MULTIEMPLOYER PLAN IS IN REORGANIZATION, INSOLVENT
OR TERMINATING OR IS REASONABLY EXPECTED TO BE IN REORGANIZATION, BECOME
INSOLVENT OR BE TERMINATED.
EXCEPT TO THE EXTENT THAT ANY SUCH EXCESS COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, THE PRESENT VALUE
(DETERMINED USING ACTUARIAL AND OTHER ASSUMPTIONS WHICH ARE REASONABLE IN
RESPECT OF THE BENEFITS PROVIDED AND THE EMPLOYEES PARTICIPATING) OF THE
LIABILITY OF THE OTHER ENTITIES AND EACH AFFILIATE THEREOF FOR POST RETIREMENT
BENEFITS TO BE PROVIDED TO THEIR CURRENT AND FORMER EMPLOYEES UNDER PLANS WHICH
ARE WELFARE BENEFIT PLANS (AS DEFINED IN SECTION 3(1) OF ERISA) OTHER THAN SUCH
LIABILITY DISCLOSED IN THE FINANCIAL STATEMENTS OF THE OTHER ENTITIES DOES NOT,
IN THE AGGREGATE, EXCEED THE ASSETS UNDER ALL SUCH PLANS ALLOCABLE TO SUCH
BENEFITS.
NEITHER THE OTHER ENTITIES NOR ANY AFFILIATE THEREOF HAS ENGAGED IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA AND/OR SECTION 4975 OF THE
CODE IN CONNECTION WITH ANY PLAN THAT WOULD SUBJECT EITHER OTHER ENTITIES TO
LIABILITY UNDER ERISA AND/OR SECTION 4975 OF THE CODE THAT COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
THERE IS NO OTHER CIRCUMSTANCE
WHICH MAY GIVE RISE TO A LIABILITY IN RELATION TO ANY PLAN THAT COULD REASONABLY
BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT;
(XIV)
THERE IS NO ACTION, SUIT, PROCEEDING OR INVESTIGATION PENDING
AGAINST OR, TO THE KNOWLEDGE OF EACH PARENT COMPANY, THREATENED AGAINST OR
AFFECTING ANY OTHER ENTITY OR OF WHICH ANY PROPERTY OR ASSETS OF THE OTHER
ENTITIES IS THE SUBJECT BEFORE ANY COURT OR ARBITRATOR OR ANY GOVERNMENTAL
AUTHORITY THAT WOULD, INDIVIDUALLY OR IN THE AGGREGATE, AFFECT THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS, MATERIALLY
ADVERSELY AFFECT THE PERFORMANCE BY THE PARENT COMPANIES OF THEIR OBLIGATIONS
HEREUNDER OR BY THE OTHER ENTITIES THEREUNDER OR WHICH IS REASONABLY LIKELY TO
HAVE A MATERIAL ADVERSE EFFECT;
(XV)
NONE OF THE OTHER ENTITIES IS, AFTER GIVING EFFECT TO THE ISSUANCE
OF THE SECURITIES, THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS
AND THE APPLICATION OF THE PROCEEDS FROM THE SALE OF THE SECURITIES AS DESCRIBED
HEREIN, IN THE DRAFT OFFERING MEMORANDUM (AS OF THE CLOSING DATE) AND IN THE
OFFERING MEMORANDUM (AS OF THE RELEVANT DATE), AN "INVESTMENT COMPANY", OR A
COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY", WITHIN THE MEANING OF THE 1940
ACT;
(XVI)
EACH OF THE OTHER ENTITIES (AFTER GIVING EFFECT TO THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS) IS NOT INSOLVENT WITHIN THE MEANING
OF THE BANKRUPTCY CODE AND NONE OF THE OTHER ENTITIES IS THE SUBJECT OF ANY
VOLUNTARY OR INVOLUNTARY CASE OR PROCEEDING SEEKING LIQUIDATION, REORGANIZATION
OR OTHER RELIEF WITH RESPECT TO ITSELF OR ITS DEBTS UNDER ANY BANKRUPTCY OR
INSOLVENCY LAW AND NO EVENT OF BANKRUPTCY HAS OCCURRED WITH RESPECT TO ANY OF
THE OTHER ENTITIES;
19
(XVII)
NO FORWARD-LOOKING STATEMENT (WITHIN THE MEANING OF SECTION 27A OF
THE SECURITIES ACT AND