EFFECTIVE DATE OF ANY SUCH
CHANGE OR USE, SELLER DELIVERS TO THE BUYER SUCH FINANCING STATEMENTS (FORM
UCC-1 AND UCC-3) EXECUTED BY SELLER WHICH THE BUYER MAY REASONABLY REQUEST TO
REFLECT SUCH CHANGE OR USE, TOGETHER WITH SUCH OTHER DOCUMENTS AND INSTRUMENTS
THAT THE BUYER MAY REQUEST IN CONNECTION THEREWITH.
(G)
ERISA MATTERS.
(I) ENGAGE OR PERMIT ANY ERISA AFFILIATE TO ENGAGE IN ANY
PROHIBITED TRANSACTION FOR WHICH AN EXEMPTION IS NOT AVAILABLE OR HAS NOT
PREVIOUSLY BEEN OBTAINED FROM THE DOL; (II) PERMIT TO EXIST ANY ACCUMULATED
FUNDING DEFICIENCY, AS DEFINED IN SECTION 302(A) OF ERISA AND SECTION 412(A) OF
THE IRC, OR FUNDING DEFICIENCY WITH RESPECT TO ANY BENEFIT PLAN OTHER THAN A
MULTIEMPLOYER PLAN; (III) FAIL TO MAKE ANY PAYMENTS TO ANY MULTIEMPLOYER PLAN
THAT THE SELLER OR ANY ERISA AFFILIATE MAY BE REQUIRED TO MAKE UNDER THE
AGREEMENT RELATING TO SUCH MULTIEMPLOYER PLAN OR ANY LAW PERTAINING THERETO;
(IV) TERMINATE ANY BENEFIT PLAN SO AS TO RESULT IN ANY LIABILITY; OR (V) PERMIT
TO EXIST ANY OCCURRENCE OF ANY REPORTABLE EVENT DESCRIBED IN TITLE IV OF ERISA
WHICH REPRESENTS A MATERIAL RISK OF A LIABILITY OF THE SELLER OR ANY ERISA
AFFILIATE UNDER ERISA OR THE IRC; PROVIDED, HOWEVER, THE SELLER AND ITS ERISA
19
Affiliates may take or allow such prohibited transactions, accumulated funding
deficiencies, payments, terminations and reportable events described in clauses
(i) through (iv) above so long as such events occurring within any fiscal year
of the Seller, in the aggregate, involve a payment of money by or an incurrence
of liability of the Seller or any ERISA Affiliate (collectively, "ERISA
Liabilities") in an amount which does not exceed $500,000.
(H)
TERMINATE OR REJECT CONTRACTS.
WITHOUT LIMITING SECTION 5.03(B) AND EXCEPT
AS OTHERWISE EXPRESSLY PERMITTED PURSUANT TO SECTION 2.05, TERMINATE OR REJECT
ANY CONTRACT PRIOR TO THE TERM OF SUCH CONTRACT, WHETHER SUCH REJECTION OR EARLY
TERMINATION IS MADE PURSUANT TO AN EQUITABLE CAUSE, STATUTE, REGULATION,
JUDICIAL PROCEEDING OR OTHER APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION,
SECTION 365 OF THE BANKRUPTCY CODE), UNLESS PRIOR TO SUCH TERMINATION OR
REJECTION, THE SELLER SHALL HAVE PAID TO THE BUYER AN AMOUNT EQUAL TO THE
TERMINATION AMOUNT THEREOF.
(I)
ACCOUNTING TREATMENT.
PREPARE ANY FINANCIAL STATEMENTS OR OTHER STATEMENTS
WHICH SHALL ACCOUNT FOR THE TRANSACTIONS CONTEMPLATED BY THIS SALE AGREEMENT IN
ANY MANNER OTHER THAN AS THE SALE OF, OR A CAPITAL CONTRIBUTION OF, THE
TRANSFERRED ASSETS BY THE SELLER TO THE BUYER (IT BEING UNDERSTOOD THAT
NON-RECOGNITION OF SUCH TRANSACTION DUE TO THE APPLICATION OF CONSOLIDATED
FINANCIAL REPORTING PRINCIPLES UNDER GAAP OR THE FILING OF TAX RETURNS ON A
CONSOLIDATED BASIS SHALL NOT CONSTITUTE A VIOLATION OF THIS COVENANT).
(J)
LIMITED LIABILITY COMPANY AGREEMENT.
CAUSE THE BUYER TO AMEND ITS LIMITED
LIABILITY COMPANY AGREEMENT IN ANY MANNER WHICH WOULD REQUIRE THE CONSENT OF THE
BUYER'S INDEPENDENT MANAGER OR MANAGERS, WITHOUT THE COLLATERAL AGENT'S PRIOR
WRITTEN CONSENT.
SECTION 5.04.
FINANCIAL COVENANTS OF THE SELLER.
(A) FROM THE DATE HEREOF
UNTIL THE LATER OF THE TERMINATION DATE OR