Common use of Conditions to the Independent Fiduciary’s Obligations Clause in Contracts

Conditions to the Independent Fiduciary’s Obligations. The Independent Fiduciary’s obligation to, or to direct the Plan Trustee to, consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver (provided that the condition in Section 8.03(b) may not be waived) of the following conditions: (a) (i) the representations and warranties set forth in Article III and Article V (x) that are qualified by materiality will be true and correct in all respects or (y) that are not qualified by materiality will be true and correct in all material respects, in each case, as of the Closing Date with the same force and effect as though made on the Closing Date (except that those representations and warranties that address matters only as of a particular date shall be true and correct as of that date in all material respects), and (ii) the Insurer and the Company shall have performed and complied with their respective covenants and agreements hereunder through the Closing in all material respects; (b) the Independent Fiduciary shall have confirmed that the Transactions continue to satisfy the ERISA Requirements because an Independent Fiduciary MAC has not occurred or, if an Independent Fiduciary MAC has occurred, it is not continuing on the Closing Date; (c) (i) no Order shall be in effect which prohibits consummation of any transactions contemplated by this Agreement and (ii) no Material Litigation shall have been filed or commenced and then be pending; (d) each delivery contemplated by Section 2.03(b) and Section 2.03(c) shall have been delivered; (e) the Administrative Services Agreement has been executed and delivered by each of the parties thereto; (f) the Plan Assets comprising the “remaining pool assets” (as determined pursuant to Part 1 of Schedule 8.03(f)) as of the Signing Date, have been adjusted through the Closing Date only (except for changes in fair value) pursuant to the methodology set forth in Part 2 of Schedule 8.03(f); and (g) simultaneously with the Closing, the Other Insurer and the Company have executed the Other Group Annuity Contract.

Conditions to the Independent Fiduciary’s Obligations. The Independent Fiduciary’s 's obligation to, or to direct the Plan Trustee to, consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver (provided that the condition in Section 8.03(b8.1(a) may not be waived) of the following conditions: (a) the Independent Fiduciary shall have confirmed that the Transaction satisfies ERISA and applicable guidance, including Interpretive Bulletin 95-1, because, since the DTFA Execution Date, there has not occurred an Independent Fiduciary MAC that continues as of the Closing Date, (b) no Order shall be in effect which prohibits the consummation of any of the transactions contemplated by this Agreement, and (c) (i) the representations and warranties set forth in Article III and Article V (xA) that are qualified by materiality will shall be true and correct in all respects or (yB) that are not qualified by materiality will shall be true and correct in all material respects, in each case, as of the Closing Date with the same force and effect as though made on the Closing Date (except that those representations and warranties that address matters only as of a particular date shall be true and correct as of that date in all material respects)Date, and (ii) each of the Company and the Insurer and the Company shall have performed and complied with their respective its covenants and agreements hereunder through the Closing in all material respects; , and (biii) the Independent Fiduciary Insurer shall have confirmed that the Transactions continue to satisfy the ERISA Requirements because an Independent Fiduciary MAC has not occurred or, if an Independent Fiduciary MAC has occurred, it is not continuing on the Closing Date; (c) (i) no Order shall be in effect which prohibits consummation of any transactions contemplated by this Agreement and (ii) no Material Litigation shall have been filed or commenced and then be pending; (d) each delivery contemplated by Section 2.03(b) and Section 2.03(c) shall have been delivered; (e) the Administrative Services Agreement has been executed and delivered by each received all of the parties thereto; (f) the Plan Assets comprising the “remaining pool assets” (as determined pursuant to Part 1 of Schedule 8.03(f)) as of the Signing Date, have been adjusted through the Closing Date only (except for changes in fair value) pursuant to the methodology Governmental Approvals set forth in Part 2 of Schedule 8.03(f); and (gAppendix 8.2(d) simultaneously with the and identified as “Required for Closing, the Other Insurer ” and the Company Plan shall have executed received all of the Other Group Annuity ContractGovernmental Approvals set forth on Appendix 8.2(e) and identified as “Required for Closing”, except, in the case of each of clauses (i)-(iii), as would not reasonably be expected to have a material adverse effect on the Independent Fiduciary's ability to perform its obligations hereunder.

Conditions to the Independent Fiduciary’s Obligations. The Independent Fiduciary’s obligation to, or to direct the Plan Trustee to, consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver (provided that the condition in Section 8.03(b) may not be waived) of the following conditions: (a) (i) the representations and warranties set forth in Article III (other than Section 3.12, which the Parties agree is not being given by the Company to the Independent Fiduciary) and Article V (x) that are qualified by materiality will be true and correct in all respects or (y) that are not qualified by materiality will be true and correct in all material respects, in each case, as of the Closing Date with the same force and effect as though made on the Closing Date (except that those representations and warranties that which address matters only as of a particular date shall be true and correct as of that date in all material respects), and (ii) the Insurer and the Company shall have performed and complied with their respective covenants and agreements hereunder through the Closing in all material respects; (b) the Independent Fiduciary shall have confirmed that the Transactions continue to satisfy the ERISA Requirements because an Independent Fiduciary MAC has not occurred or, if an Independent Fiduciary MAC has occurred, it is not continuing on the Closing Date; (c) (i) no Order shall be in effect which prohibits consummation of any transactions contemplated by this Agreement and (ii) no Material Litigation shall have been filed or commenced and then be pending;; -44- (d) each delivery contemplated by Section 2.03(b) and Section 2.03(c) shall have been delivered; (e) the Administrative Services Agreement has been executed and delivered by each of the parties thereto; (f) the Plan Assets comprising the “remaining pool assets” (as determined pursuant to Part 1 of Schedule 8.03(f)) as of the Signing Date, ) have been adjusted through the Closing Date only (except for changes in fair value) pursuant to the methodology set forth in Part 2 of Schedule 8.03(f); and; (g) simultaneously with the Closing, the Other Insurer and the Company have executed the Other Group Annuity Contract; and (h) the agreements contemplated by Section 7.04 have been executed and delivered by each of the parties thereto.

Conditions to the Independent Fiduciary’s Obligations. The Independent Fiduciary’s obligation to, or to direct the Plan Trustee to, consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver (provided that the condition in Section 8.03(b) may not be waived) of the following conditions: (a) (i) the representations and warranties set forth in Article III (other than Section 3.12, which the Parties agree is not being given by the Company to the Independent Fiduciary) and Article V (x) that are qualified by materiality will be true and correct in all respects or (y) that are not qualified by materiality will be true and correct in all material respects, in each case, as of the Closing Date with the same force and effect as though made on the Closing Date (except that those representations and warranties that which address matters only as of a particular date shall be true and correct as of that date in all material respects), and (ii) the Insurer and the Company shall have performed and complied with their respective covenants and agreements hereunder through the Closing in all material respects; (b) the Independent Fiduciary shall have confirmed that the Transactions continue to satisfy the ERISA Requirements because an Independent Fiduciary MAC has not occurred or, if an Independent Fiduciary MAC has occurred, it is not continuing on the Closing Date; (c) (i) no Order shall be in effect which prohibits consummation of any transactions contemplated by this Agreement and (ii) no Material Litigation shall have been filed or commenced and then be pending; (d) each delivery contemplated by Section 2.03(b) and Section 2.03(c) shall have been delivered; (e) the Administrative Services Agreement has been executed and delivered by each of the parties thereto; (f) the Plan Assets comprising the “remaining pool assets” (as determined pursuant to Part 1 of Schedule 8.03(f)) as of the Signing Date, ) have been adjusted through the Closing Date only (except for changes in fair value) pursuant to the methodology set forth in Part 2 of Schedule 8.03(f); and; (g) simultaneously with the Closing, the Other Insurer and the Company have executed the Other Group Annuity Contract; and (h) the agreements contemplated by Section 7.04 have been executed and delivered by each of the parties thereto.