Common use of Compliance with ERISA; Multiemployer Plans Clause in Contracts

Compliance with ERISA; Multiemployer Plans. (a) Neither the execution and delivery of this Agreement or the other Loan Documents, the incurrence of the indebtedness hereunder by the Borrower, the application by the Borrower of the proceeds thereof, nor the consummation of any of the other transactions contemplated by this Agreement, constitutes or will constitute a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA). (b) Each Plan is in compliance in all material respects with applicable provisions of ERISA and the Code. Each of the Borrower and the Subsidiaries has made all contributions to the Plans required to be made by them. (c) Except for liabilities to make contributions and to pay PGGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, nor any ERISA Affiliate has incurred any material liability to or on, account of any Plan or Pension Plan under applicable provisions of ERISA or the Code, and no condition exists which presents a material risk to the Borrower, any of its subsidiaries, or any ERISA Affiliate of incurring any such liability. No domestic Pension Plan has an “accumulated funding deficiency” (within the meaning of Section 412 of the Code), whether or not waived. Neither the Parent, the Borrower, any of its Subsidiaries, any ERISA Affiliate, the PBGC, nor any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, and neither the Borrower, any of its Restricted Subsidiaries, nor any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years, (ii) has incurred or is reasonably expected to incur any “withdrawal liability” (within the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA).

Compliance with ERISA; Multiemployer Plans. (a) Neither (i) the execution and delivery of this Securities Exchange Agreement or by the other Loan DocumentsCompany, (ii) the incurrence offer, issuance, sale and delivery of the indebtedness hereunder Securities by the BorrowerCompany, (iii) the acquisition of the Securities by you, (iv) the application by the Borrower Company of the proceeds thereof, of the sale of the Securities nor (v) the consummation of any of the other transactions contemplated by this Agreement, constitutes or Securities Exchange Agreement will constitute neither result in a “"prohibited transaction” " as described in Section 406(a) of ERISA nor a tax under Section 4975 of the Code. The Company has delivered to you a complete and correct list of all "employee benefit plans" (within the meaning of Section 4975 3(3) of ERISA) with respect to which the Company or any ERISA Affiliate of the Code Company is a "party in interest" (within the meaning of Section 3(14) of ERISA) or with respect to which its securities are "employer securities" (within the meaning of 14 Section 406 407(d)(1) of ERISA). (b) Each Plan is in compliance in all material respects with applicable provisions of ERISA, the Code and applicable foreign law. The Company and each ERISA and the Code. Each of the Borrower and the Subsidiaries Affiliate has made all contributions to the Plans required to be made by themit. (c) Except for liabilities to make contributions and to pay PGGC PBGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, Company nor any ERISA Affiliate of the Company has incurred any material liability to or on, on account of any Plan or Pension Plan under applicable provisions of ERISA ERISA, the Code or the Codeapplicable foreign law, and no condition exists which presents a material risk to the Borrower, any of its subsidiaries, Company or any ERISA Affiliate of the Company of incurring any such liability. No domestic Pension Plan has an “"accumulated funding deficiency” " (within the meaning of Section 412 of the Code), whether or not waived. Neither None of the Parent, the Borrower, any of its SubsidiariesCompany, any ERISA AffiliateAffiliate of the Company, the PBGC, nor PBGC or any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the The actuarial present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accrued benefit liabilities under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, Internal Revenue Service did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, and neither the Borrower, any of its Restricted Subsidiaries, Company nor any ERISA Affiliate (i) of the Company has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years, years and (ii) has incurred or is reasonably expected to incur neither the Company nor any “withdrawal liability” (within ERISA Affiliate of the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, Company maintains or has been “terminated” (within any obligation to maintain any plan, program or other arrangement for the meaning provision of Title IV post-employment group health or other welfare benefits for its retired or former employees except to the extent required under Section 601 et seq. of ERISA)ERISA or Section 4980B of the Code.

Compliance with ERISA; Multiemployer Plans. (a) Neither the execution and delivery of this Agreement or the other Loan Documents, the incurrence of the indebtedness hereunder by the Borrower, the application by the Borrower of the proceeds thereof, nor the consummation of any of the other transactions contemplated by this Agreement, constitutes or will constitute a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA). (b) Each Plan (other than a Multiemployer Plan) is in compliance in all material respects with applicable provisions of ERISA and the Code. Each of the Borrower and the Subsidiaries has made all contributions to the Plans required to be made by them. (c) Except for liabilities to make contributions and to pay PGGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, nor any ERISA Affiliate has incurred any material liability to or on, account of any Plan or Pension Plan under applicable provisions of ERISA or the Code, and no condition exists which presents a material risk to the Borrower, any of its subsidiariesSubsidiaries, or any ERISA Affiliate of incurring any such liability. No domestic Pension Plan (other than a Multiemployer Plan) has an “accumulated failed to satisfy the minimum funding deficiency” standard (within the meaning of Section 412 of the Code), whether or not waived. Neither the Parent, the Borrower, any of its Subsidiaries, any ERISA Affiliate, the PBGC, nor any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan (other than a Multiemployer Plan), nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accumulated benefit obligations under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, except as set forth in the Parent’s financial statements, Note 9, Pension Plans, as reported in the Parent’s Annual Report on Form 10-K for the fiscal year ended May 3, 2014 (and neither the Borrower, any of its Restricted Subsidiaries, nor any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six similar Notes for subsequent fiscal years, (ii) has incurred or is reasonably expected to incur any “withdrawal liability” (within the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA).

Compliance with ERISA; Multiemployer Plans. (a) Neither (i) the execution and delivery of this Agreement or by the Company, (ii) the offer, issuance, sale and delivery of the Notes by the Company, (iii) the acquisition of the Notes by you, (iv) the execution and delivery of the other Loan Documents, the incurrence of the indebtedness hereunder Debt Documents by the BorrowerCompany, (v) the application by the Borrower Company of the proceeds thereof, of the sale of the Notes nor (vi) the consummation of any of the other transactions contemplated by this Agreement, the Debt Documents constitutes or will constitute result in a non-exempt “prohibited transaction” (within the meaning of under Section 4975 of the Code or Section 406 of ERISA. The representation by the Company in the preceding sentence is made in reliance upon and subject to the accuracy of the representations made by you in Section 4.1. Item 3.12 of Schedule II is a complete and correct list of all Plans with respect to which the Company or any ERISA Affiliate is a “party in interest” (within the meaning of Section 3(14) of ERISA) or with respect to which its securities are “employer securities” (within the meaning of Section 407(d)(1) of ERISA). (b) Each Plan is in Material compliance in all material respects with applicable provisions of ERISA and the Code. Each of the Borrower Company and the Subsidiaries any ERISA Affiliate has made all contributions to the Plans each Plan required to be made by themit. (c) Except for liabilities to make contributions and to pay PGGC PBGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, Company nor any ERISA Affiliate has incurred any material Material liability to or on, on account of any Plan or Pension Plan under applicable provisions of ERISA or the Code, and no condition exists which presents a material Material risk to the Borrower, any of its subsidiaries, Company or any ERISA Affiliate of incurring any such liability. No domestic Pension Plan has an “accumulated funding deficiency” (within the meaning of Section 412 of the Code), whether or not waived. Neither None of the Parent, the Borrower, any of its Subsidiaries, Company or any ERISA Affiliate, the PBGC, nor PBGC or any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) [Except with respect as disclosed in Note 14 to any Multiemployer Planthe Company’s Financial Statements for the Fiscal Year ended October 1, 2005, is this clause needed?] the actuarial present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accumulated benefit obligations under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, Internal Revenue Service) did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material. The expected post-retirement benefit obligation (determined as of the Plans is a Multiemployer Planlast day of the Company’s most recently ended Fiscal Year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to continuation coverage mandated by Section 4980B of the Code) of the Company and neither the Borrower, any of its Restricted Subsidiaries, nor any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years, (ii) has incurred or is reasonably expected to incur any “withdrawal liability” (within the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) Subsidiaries has been notified by accurately reflected in Note 15 to the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolventCompany’s Financial Statements for the Fiscal Year ended October 1, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA)2005.

Compliance with ERISA; Multiemployer Plans. (a) Neither the execution and delivery of this Agreement or the other Loan Documents, the incurrence of the indebtedness hereunder by the Borrower, the application by the Borrower of the proceeds thereof, nor the consummation of any of the other transactions contemplated by this Agreement, constitutes or will constitute a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA). (b) Each Plan (other than a Multiemployer Plan) is in compliance in all material respects with applicable provisions of ERISA and the Code. Each of the Borrower and the Subsidiaries has made all contributions to the Plans required to be made by them. (c) Except for liabilities to make contributions and to pay PGGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, nor any ERISA Affiliate has incurred any material liability to or on, account of any Plan or Pension Plan under applicable provisions of ERISA or the Code, and no condition exists which presents a material risk to the Borrower, any of its subsidiariesSubsidiaries, or any ERISA Affiliate of incurring any such liability. No domestic Pension Plan (other than a Multiemployer Plan) has an “accumulated failed to satisfy the minimum funding deficiency” standard (within the meaning of Section 412 of the Code), whether or not waived. Neither the Parent, the Borrower, any of its Subsidiaries, any ERISA Affiliate, the PBGC, nor any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan (other than a Multiemployer Plan), nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accumulated benefit obligations under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, except as set forth in the Parent's financial statements, Note 9, Pension Plans, as reported in the Parent's Annual Report on Form 10-K for the fiscal year ended May 3, 2014 (and neither the Borrower, any of its Restricted Subsidiaries, nor any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six similar Notes for subsequent fiscal years, (ii) has incurred or is reasonably expected to incur any “withdrawal liability” (within the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA).

Compliance with ERISA; Multiemployer Plans. (a) Neither the execution and delivery of this Agreement or by the other Loan DocumentsCompany, the incurrence offer, issuance, sale and delivery of the indebtedness hereunder Notes by the BorrowerCompany, the acquisition of the Notes by you, the application by the Borrower Company of the proceeds thereofof the sale of the Notes, nor the consummation of any of the other transactions contemplated by this Agreement, constitutes or will constitute a “"prohibited transaction” " (within the meaning of Section 4975 of the Code or Section 406 of ERISA).. The representation by the Company in the preceding sentence is made in reliance upon and subject to the accuracy of the representations made by you in Section 3.1. hereof (b) Each Plan of each of the Company and its Affiliates is in compliance in all material respects with applicable provisions of ERISA ERISA, the Code and the Codeapplicable foreign law. Each of the Borrower Company and the Subsidiaries its Affiliates has made all contributions to the Plans required to be made by them. (c) Except for liabilities to make contributions and to pay PGGC PBGC premiums and administrative costs, neither the Borrower, none of the SubsidiariesCompany, nor any of its Affiliates, or any ERISA Affiliate has incurred any material liability to or on, on account of any Plan or Pension Plan under applicable provisions of ERISA ERISA, the Code or the Codeapplicable foreign law, and no condition exists which presents a material risk to the BorrowerCompany, any of its subsidiariesAffiliates, or any ERISA Affiliate of incurring any such liability. No domestic Pension Plan has an “"accumulated funding deficiency” " (within the meaning of Section 412 of the Code), whether or not waived, and no foreign Pension Plan is in violation of any funding requirements imposed by applicable foreign law. Neither None of the Parent, the BorrowerCompany, any of its SubsidiariesAffiliates, or any ERISA Affiliate, the PBGC, nor PBGC or any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the The actuarial present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accrued benefit liabilities under each domestic Pension Plan and under each foreign Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such domestic Pension Plan for which an annual report has been filed with the Internal Revenue Service (the "IRS, ") or of such foreign Pension Plan for which year-end actuarial information is available) did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, and neither none of the BorrowerCompany, any of its Restricted SubsidiariesAffiliates, nor or any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years, (ii) has incurred or is reasonably expected to incur any “withdrawal liability” (within the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA).

Compliance with ERISA; Multiemployer Plans. (a) Neither (i) the execution and delivery of this Securities Purchase Agreement or by the other Loan DocumentsCompany and the Parent, (ii) the incurrence offer, issuance, sale and delivery of the indebtedness hereunder Securities by the BorrowerCompany and the Parent, (iii) the acquisition of the Securities by you, (iv) the application by the Borrower Company and the Parent of the proceeds thereof, of the sale of the Securities nor (v) the consummation of any of the other transactions contemplated by this Agreement, Securities Purchase Agreement constitutes or will constitute a “"prohibited transaction” " (within the meaning of Section 4975 of the Code or Section 406 of ERISA). The representation by the Company and the Parent in the preceding sentence is made in reliance upon and subject to the accuracy of the representations made by you in Section 3.2 hereof. The Company has delivered to you a complete and correct list of all "employee benefit plans" (within the meaning of Section 3(3) of ERISA) with respect to which the Company or any ERISA Affiliate of the Company is a "party in interest" (within the meaning of Section 3(14) of ERISA) or with respect to which its securities are "employer securities" (within the meaning of Section 407(d)(1) of ERISA). (b) Each Plan is in compliance in all material respects with applicable provisions of ERISA, the Code and applicable foreign law. The Company and each ERISA and the Code. Each of the Borrower and the Subsidiaries Affiliate has made all contributions to the Plans required to be made by themit. (c) Except for liabilities to make contributions and to pay PGGC PBGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, Company nor any ERISA Affiliate of the Company has incurred any material liability to or on, on account of any Plan or Pension Plan under applicable provisions of ERISA ERISA, the Code or the Codeapplicable foreign law, and no condition exists which presents a material risk to the Borrower, any of its subsidiaries, Company or any ERISA Affiliate of the Company of incurring any such liability. No domestic Pension Plan has an “"accumulated funding deficiency” " (within the meaning of Section 412 of the Code), whether or not waived. Neither None of the Parent, the Borrower, any of its SubsidiariesCompany, any ERISA AffiliateAffiliate of the Company, the PBGC, nor PBGC or any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the The actuarial present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accrued benefit liabilities under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, Internal Revenue Service did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None Except as specified in Item 2.16(e) of SCHEDULE II, (i) none of the Plans is a Multiemployer Plan, and neither the Borrower, any of its Restricted Subsidiaries, Company nor any ERISA Affiliate (i) of the Company has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years, years and (ii) has incurred or is reasonably expected to incur neither the Company nor any “withdrawal liability” (within ERISA Affiliate of the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, Company maintains or has been “terminated” (within any obligation to maintain any plan, program or other arrangement for the meaning provision of Title IV post-employment group health or other welfare benefits for its retired or former employees except to the extent required under Section 601 ET SEQ. of ERISA)ERISA or Section 4980B of the Code.

Compliance with ERISA; Multiemployer Plans. (a) Neither the execution and delivery of this Agreement or the other Loan Documents, the incurrence of the indebtedness hereunder by the Borrower, the application by the Borrower of the proceeds thereof, nor the consummation of any of the other transactions contemplated by this Agreement, constitutes or will constitute a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA). (b) Each Plan (other than a Multiemployer Plan) is in compliance in all material respects with applicable provisions of ERISA and the Code. Each of the Borrower and the Subsidiaries has made all contributions to the Plans required to be made by them. (c) Except for liabilities to make contributions and to pay PGGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, nor any ERISA Affiliate has incurred any material liability to or on, on account of any Plan or Pension Plan under applicable provisions of ERISA or the Code, and no condition exists which presents a material risk to the Borrower, any of its subsidiariesSubsidiaries, or any ERISA Affiliate of incurring any such liability. No domestic Pension Plan (other than a Multiemployer Plan) has an “accumulated failed to satisfy the minimum funding deficiency” standard (within the meaning of Section 412 of the Code), whether or not waived. Neither the Parent, the Borrower, any of its Subsidiaries, any ERISA Affiliate, the PBGC, nor any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan (other than a Multiemployer Plan), nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accumulated benefit obligations under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable), and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, except as set forth in the Parent’s financial statements, Note 9, Pension Plans, as reported in the Parent’s Annual Report on Form 10-K for the fiscal year ended May 3, 2014 (and neither the Borrower, any of its Restricted Subsidiaries, nor any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six similar Notes for subsequent fiscal years, (ii) has incurred or is reasonably expected to incur any “withdrawal liability” (within the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA). 4. Section 6.12 of the Agreement is deleted in its entirety and replaced with the following:

Compliance with ERISA; Multiemployer Plans. Except as set forth in Schedule 2.14 hereto: (a) Neither the execution There are no Plans, and delivery of this Agreement there are no other deferred compensation, bonus, incentive, stock option, stock purchase, child or the dependent care, educational assistance, vacation or leave, sick pay, cafeteria or other Loan Documentsemployee benefit or fringe benefit plans or arrangements sponsored, the incurrence of the indebtedness hereunder maintained or contributed to by the BorrowerCompany. Copies of all Plans and other such plans or arrangements (including any amendments and any related trust or other funding agreements) and the most recent annual reports, summary annual reports and summary plan descriptions (or if none is required, other descriptive material) of all Plans and other such plans or arrangements have been delivered to the application by Purchaser and special counsel to the Borrower of the proceeds thereof, nor the consummation of any of the other transactions contemplated by this Agreement, constitutes or will constitute a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA)Purchasers. (b) Each Plan There is no failure of the Plans, individually or in the aggregate, to be in compliance in all material respects with the applicable provisions of ERISA ERISA, the Code and applicable foreign law that could reasonably be expected in the Codejudgment of a prudent business person to have a Material Adverse Effect. Each There is no failure of the Borrower Company to make all contributions, and the Subsidiaries has made pay all contributions expenses, with respect to the Plans required to be made or paid by themit, or to pay or accrue any obligations to contribute, or pay any expenses, with respect to any Plan for the portion of the plan year or other fiscal period ending on the Closing Date that could be reasonably expected in the judgment of a prudent business person to have a Material Adverse Effect. (c) Each Plan that is intended to be qualified under Section 401(a) or 403(a) of the Code, and each Plan trust that is intended to be exempt under Section 501(c)(9) or (17) of the Code, has received a favorable determination letter from the Internal Revenue Service, a copy of the most recent such letter for such plan has been delivered to the Purchaser and special counsel to the Purchaser, and nothing has occurred since the date of such letter with respect to such Plan that could reasonably be expected in the judgment of a prudent business person to have a Material Adverse Effect. (d) Except for liabilities to make contributions and to pay PGGC PBGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, Company nor any ERISA Affiliate has incurred any material liability to or on, on account of any Pension Plan or Pension other Plan under applicable provisions of ERISA ERISA, the Code or the Codeapplicable foreign law, and no condition exists which presents could reasonably be expected in the judgment of a material risk prudent business person to cause the Borrower, any of its subsidiaries, Company or any an ERISA Affiliate of incurring to have incurred any such liability. No domestic Pension Plan has an “accumulated funding deficiency” (within the meaning of Section 412 of the Code), whether or not waived. Neither the Parent, the Borrower, any of its Subsidiaries, any ERISA Affiliate, the PBGC, nor any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, did not exceed the current fair market value of the assets of such Pension Plan as of such last dayliability that would have a Material Adverse Effect. (e) None of the Plans is a Multiemployer Plan, and neither the Borrower, any of its Restricted Subsidiaries, Company nor any ERISA Affiliate (i) has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years. (f) None of the Plans that is not a Pension Plan provides benefits for retired employees except as required by law. (g) There are no actions, (ii) has incurred suits or is claims which have been instituted or asserted, or which could reasonably be expected to incur be asserted, against or with respect to any “withdrawal liability” (within Plan, other than claims for benefits under and services rendered to each such plan in the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, or has been “terminated” (within the meaning of Title IV of ERISA)ordinary course.

Compliance with ERISA; Multiemployer Plans. (a) Neither (i) the execution and delivery of this Securities Exchange Agreement or by the other Loan DocumentsCompany, (ii) the incurrence offer, issuance, sale and delivery of the indebtedness hereunder Notes by the BorrowerCompany, (iii) the acquisition of the Notes by you, (iv) the application by the Borrower Company of the proceeds thereof, of the sale of the Notes nor (v) the consummation of any of the other transactions contemplated by this Agreement, constitutes Securities Exchange Agreement will result in a prohibited transaction as described in Section 406(a) of ERISA or will constitute a “prohibited transaction” tax under Section 4975 of the Code. The Company has delivered to you a complete and correct list of all employee benefit plans (within the meaning of Section 4975 3(3) of ERISA) with respect to which the Company or any ERISA Affiliate of the Code Company is a party in interest (within the meaning of Section 3(14) of ERISA) or with respect to which its securities are employer securities (within the meaning of Section 406 407(d)(1) of ERISA). (b) Each Plan is in compliance in all material respects with applicable provisions of ERISA, the Code and applicable foreign law. The Company and each ERISA and the Code. Each of the Borrower and the Subsidiaries Affiliate has made all contributions to the Plans required to be made by themit. (c) Except for liabilities to make contributions and to pay PGGC PBGC premiums and administrative costs, neither the Borrower, of the Subsidiaries, Company nor any ERISA Affiliate of the Company has 7 incurred any material liability to or on, on account of any Plan or Pension Plan under applicable provisions of ERISA ERISA, the Code or the Codeapplicable foreign law, and no condition exists which presents a material risk to the Borrower, any of its subsidiaries, Company or any ERISA Affiliate of the Company of incurring any such liability. No domestic Pension Plan has an “accumulated funding deficiency” deficiency (within the meaning of Section 412 of the Code), whether or not waived. Neither None of the Parent, the Borrower, any of its SubsidiariesCompany, any ERISA AffiliateAffiliate of the Company, the PBGC, nor PBGC or any other Person has instituted any proceedings or taken any other action to terminate any Pension Plan, nor (in the case of the Parent, the Borrower, or any Subsidiary) has any present intention of terminating any Pension Plan. (d) Except with respect to any Multiemployer Plan, the The actuarial present value of the “current liability” (within the meaning of Section. 412 (1) (7) (a) of the Code) all accrued benefit liabilities under each Pension Plan (based on the assumptions used in the funding of such Pension Plan, which assumptions are reasonable, and determined as of the last day of the most recent plan year of such Pension Plan for which an annual report has been filed with the IRS, Internal Revenue Service did not exceed the current fair market value of the assets of such Pension Plan as of such last day. (e) None of the Plans is a Multiemployer Plan, and neither the Borrower, any of its Restricted Subsidiaries, Company nor any ERISA Affiliate (i) of the Company has contributed or been obligated to contribute to any Multiemployer Plan at any time within the preceding six years, years and (ii) has incurred or is reasonably expected to incur neither the Company nor any “withdrawal liability” (within ERISA Affiliate of the meaning of Part I of Subtitle E of Title IV of ERISA) ; or (iii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, is in reorganization, Company maintains or has been “terminated” (within any obligation to maintain any plan, program or other arrangement for the meaning provision of Title IV post-employment group health or other welfare benefits for its retired or former employees except to the extent required under Section 601 et seq. of ERISA)ERISA or Section 4980B of the Code.