ERISA Matters (a) Each Lender (i) represents and warrants, as of the date such Person became a Lender party hereto, to, and (ii) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, each Arranger, and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(A) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(B) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(C) (1) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (2) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (3) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (4) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(D) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) subclause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant as provided in subclause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, each Arranger, and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent, any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
Environmental Matters (a) Except as set forth in Section 4.13(a) of the Disclosure Letter, to the best knowledge of the Company:
(i) the Company and each of its Subsidiaries have been at all times and are in substantial compliance with all applicable Environmental Laws (as hereinafter defined);
(ii) there are no past or present events, conditions, circumstances, activities, practices, incidents or actions (including proposed changes in any Company Permit) that are reasonably likely to substantially interfere with the continued operation of the business of the Company and of its Subsidiaries in the manner now conducted or to give rise to any liability under Environmental Laws that could reasonably be expected to have a Material Adverse Effect;
(iii) no real property or facility currently or formerly owned, used, operated, leased, managed or controlled by the Company, each of its Subsidiaries or any predecessor in interest, is listed on the National Priorities List or the Comprehensive Environmental Response, Compensation, and Liability Information System ("CERCLIS"), both promulgated under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), or on any comparable state or local list established pursuant to any Environmental Law;
(iv) neither the Company, any of its Subsidiaries nor any predecessor in interest has received any written notification of potential or actual liability or request for information under CERCLA or any comparable foreign, state or local law;
(v) there is no civil, criminal or administrative action, suit, demand, hearing, notice of violation or deficiency, investigation, proceeding, notice, demand letter, decree, judgment, complaint, agreement, claim or citation pending or threatened against the Company or any of its Subsidiaries under any Environmental Law, except where such liability or action, suit, demand, hearing, notice of violation or deficiency, investigation, proceeding, demand letter, decree, judgment, complaint, agreement, claim or citation would not, individually or in the aggregate, have a Material Adverse Effect and, also would not adversely affect the ability to continue to operate each facility in the manner in which it is currently operating;
(vi) no Hazardous Material (as hereinafter defined) has been at any time or is on the date hereof treated, recycled, or disposed of at, in, on or under any facility or real property owned, operated, leased, managed or controlled by the Company or any of its Subsidiaries, except in compliance with applicable Environmental Laws, and none of the Company or any of its Subsidiaries currently require or previously required interim status or a hazardous waste permit for the treatment, storage or disposal of hazardous waste pursuant to the Resource Conservation and Recovery Act, as amended, or pursuant to any comparable foreign or state hazardous waste statute or regulation; and
(vii) there has been no Release (as hereinafter defined) at, in, on or under any facility or real property owned, operated, leased, managed or controlled by the Company or any of its Subsidiaries that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(b) The Company has given Parent and Sub access to all records and files in its possession at both its corporate headquarters and its facilities currently owned, operated, leased, managed, used or controlled by the Company, or any of its Subsidiaries, including all reports, studies, analyses, tests or monitoring results, pertaining to the existence of Hazardous Material or any other environmental concerns relating to facilities or real property owned, operated, leased, managed, used or controlled by the Company or any of its Subsidiaries or concerning compliance with or liability under any Environmental Laws.
(c) For purposes of this Section 4.13, the definition of the Company shall include all of the Company's former Subsidiaries.
(d) All disclosures, notifications, registrations, and filings required to have been made under applicable Environmental Law with respect to the transactions contemplated by this Agreement have been timely made.
(e) For purposes of this Agreement, "ENVIRONMENTAL LAW" means any law, statute, ordinance, code, rule, regulation, requirement, order, writ, injunction, decree, demand, judgment, ruling, decision, determination, award or binding agreement, issued or entered into by any Governmental Entity, relating to: (i) pollution, contamination, cleanup, preservation, protection or reclamation of the environment (including any ambient, workplace or indoor air, surface water, drinking water, groundwater, land surface, subsurface strata, river sediment, plant or animal life, natural resources, workplace and real property and the physical buildings, structures, improvement and fixtures thereon); (ii) worker health or safety, including the exposure of employees and other persons to any Hazardous Material; (iii) any Release or threatened Release, including investigation, study, assessment, testing, monitoring, containment, removal, remediation, cleanup and abatement of such Release or threatened Release; and (iv) the management of any Hazardous Material, including the manufacture, generation, formulation, processing, labeling, distribution, introduction into commerce, registration, use, treatment, handling, storage, disposal, transportation, re-use, recycling or reclamation of any Hazardous Material.
