Employee Pension Benefit Plans. The Seller’s Hecla Mining Company Retirement Plan (“Seller’s Retirement Plan”) has been, and will remain, sponsored and maintained by the Seller for the benefit of its and its Affiliates’ eligible hourly and salaried employees. The Seller shall fully vest all hourly and salaried employees of the Target who remain employees of the Target immediately after the Closing under Seller’s Retirement Plan as of the Closing. The Buyer and the Target shall establish a new retirement plan comparable to Seller’s Retirement Plan to cover hourly and salaried employees of the Target with respect to future retirement benefit accruals on and after the Closing. It is the intent of the Buyer and the Seller to apportion the assets and liabilities of Seller’s Retirement Plan in accordance with and subject to the following provisions of this §6(i). (A) It is the intent of the Buyer and the Seller to apportion the liabilities and assets of Seller’s Retirement Plan to provide for a transfer of liabilities and assets as of the Closing, in an amount equal to the total liabilities for retirement benefits of employees the Target who remain employees of the Target immediately after the Closing which have accrued under the Seller’s Retirement Plan as of the Closing, determined as if such employees had terminated employment as of the Closing, with the determination of the amount of such assets to be transferred being made in accordance with the actuarial methods and assumptions used by the Seller’s Actuary (as defined below) for plan funding purposes for the 2006 plan year, which assumptions include a 7% interest rate and mortality in accordance with the 1983 Group Annuity Mortality Table, and taking into account projected future salary increases. The Buyer shall establish or shall cause the Target to establish a retirement plan (“Buyer’s Retirement Plan”) which shall be objectively equal in all material respects to the Seller’s Retirement Plan with respect to benefits accrued as of Closing, including optional forms of benefits. The Buyer’s Retirement Plan will assume the liability for benefits accrued under the Seller’s Retirement Plan prior to the Closing with respect to employees of the Target who remain employed by the Target immediately after the Closing, contingent upon the receipt of the transferred assets as provided herein. Such amount to be transferred as of the Closing shall accrue interest at a rate of 7% per annum from the Closing until the date of transfer, and shall be reduced by the amount of any benefit payments (plus interest at 7%) made to or on behalf of covered employees after the Closing and prior to the date of transfer. Notwithstanding the foregoing, Buyer’s Retirement Plan shall not be obligated to assume liability for any benefits accrued under the Seller’s Retirement Plan or to accept a transfer of assets from the Seller’s Retirement Plan if Buyer or the Target reasonably believes that such assumption or transfer could adversely affect the qualified status of the Buyer’s Retirement Plan under Section 401(a) of the Code. (B) The amount of transferred assets as described above may be transferred in cash or in kind, to the extent a transfer in kind is approved by the Buyer. Promptly after the Closing, the Seller and the Buyer shall each file Forms 5310-A, to the extent not excepted from such filing requirement by applicable regulations, in respect of the Seller’s Retirement Plan in the case of the Seller, and the Buyer’s Retirement Plan in the case of the Buyer, and shall provide the other Party a copy thereof. The actuarial calculations required hereunder shall be provided by the Seller and performed by Xxxxxx & Associates (“Seller’s Actuary”). The Buyer will be supplied with a copy of the report of Seller’s Actuary embodying the results of such calculation. An actuary designated by the Buyer shall, at the Buyer’s expense, be entitled to confirm the accuracy of the calculations by which such results were reached. In the event of a disagreement between said actuaries, the disagreement shall be settled by reference to a third independent actuary of national standing agreed to by the Seller and the Buyer. The Seller and the Buyer shall each pay one-half of the fee charged by any such third actuary. The Seller and the Buyer shall cause any required advance notification to the IRS regarding transfers of plan assets to be made and shall cooperate to secure any approval by any government agency which is required by law for a transfer of assets and liabilities for benefits from the Seller’s Retirement Plan to the Buyer’s Retirement Plan. (C) The Buyer shall be entitled to receive from the Seller, within a reasonable time after the Closing and at all times thereafter, such pertinent data and information that the Buyer may reasonably require (including, but not limited to, participant and beneficiary records) to implement the requirements of this §6(h), to administer the Buyer’s Retirement Plan and to respond to any claims, audits or examinations. The Seller and the Buyer shall cooperate with each other in all respects relating to this §6(i) and, except as otherwise set forth, shall each pay their respective expenses arising from the obligations undertaken by each pursuant to this §6(i). (D) Except as provided in §6(d) and 6(i)(ii) of this Agreement, nothing contained in §6(i) shall be deemed to require the Buyer to maintain a particular benefit plan for any particular period of time or as preventing the Buyer from amending or terminating Buyer’s 401(k) plan, Buyer’s Retirement Plan or any other employee benefit plan, program, policy or arrangement at any time and for any reason.
Appears in 1 contract
Employee Pension Benefit Plans. The Seller’s Hecla Mining Company Retirement Plan (“Seller’s Retirement Plan”) has been, and will remain, sponsored and maintained by the Seller for the benefit of its and its Affiliates’ eligible hourly and salaried employees. The Seller shall fully vest all hourly and salaried employees of the Target who remain employees of the Target immediately As soon as practicable after the Closing under Date, and after giving and receiving appropriate governmental notifications and approvals, the Parties shall take the following actions with regard to those Employee Benefit Plans listed on Schedule 3.25(b) (or shall cause the following actions to be taken by the trustees, custodians, and, where appropriate, actuaries and other professionals retained by such plans) in which any participant was an employee of, was terminated with a deferred vested benefit from, or was a retiree from any of the Company and the Subsidiaries (or their respective predecessors) prior to the Closing Date (such participants, together with their beneficiaries, are referred to collectively herein as "Company Participants"):
(i) With respect to those Employee Benefit Plans (indicated by an "A" in parentheses alongside its listing in Schedule 3.25(b)) which are non- qualified defined benefit plans, non-qualified defined contribution plans, qualified defined benefit plans, deferred compensation plans or employee stock option plans, Parent, Seller’s Retirement Plan , the Company, and the Subsidiaries shall amend the Employee Benefit Plans to provide, effective as of the Closing. The Buyer Closing Date, that each employee of the Company and the Target Subsidiaries who is a participant in any such Employee Benefit Plan shall establish have a new retirement plan comparable fully vested and nonforteitable right to Seller’s Retirement Plan to cover hourly and salaried employees any benefit or account accrued in his or her name, in each case as of the Target Closing Date. Effective as of the Closing Date, the Company and the Subsidiaries shall cease sponsorship of and participation in such Employee Benefit Plans and such Employee Benefit Plans shall be sponsored solely by Seller. Parent, Seller and the Company and the Subsidiaries shall take all actions necessary to terminate the sponsorship and participation of the Company and the Subsidiaries in such Employee Benefit Plans and to ensure that Seller sponsors such plans as of the Closing Date, and Seller shall be solely responsible for all liabilities and obligations with respect to future retirement benefit accruals on and after such plans following the Closing. It is the intent With respect to those Employee Benefit Plans which are qualified or non- qualified defined benefit plans, Seller shall take all actions necessary to amend such plans to provide that for purposes of the determining participants eligibility for early retirement benefits, service will include service with Buyer and the Seller to apportion the assets and liabilities of retirement from employment with Buyer shall be treated as retirement from active employment with Seller’s Retirement Plan in accordance with and subject to the following provisions of this §6(i).
(ii) With respect to each Employee Benefit Plan (indicated by a "B" in parentheses alongside its listing on Schedule 3.25(b)) which is a tax- qualified defined contribution pension plan (other than an employee stock ownership plan) and which covers Company Participants as well as other participants ("Non-Company Participants"), Seller shall direct to Buyer's successor plan and trustee a transfer, in cash, securities (other than securities of Seller or any affiliate), other property, or any combination thereof as agreed upon by the Parties pursuant to good faith bargaining (or in particular investments (other than securities of Seller or any affiliate) if such plan permitted participant directed investments and both such plan and Buyer s successor plan and trustee will permit such transfer of particular investments) of that portion of such plan's assets (including all outstanding Company Participant loans, if any, and including allocable earnings and losses of such plan or, in the case of participant-directed investments, including earnings and losses of the individual Company Participant accounts), valued as of the date of such transfer, allocable to those Company Participants with a benefit or account (whether or not vested) under such plan (other than benefits or accounts which have been distributed in the normal course as of the date of such transfer). Thereafter Buyer shall assume (or the applicable Company or Subsidiary shall retain) all liabilities and responsibilities relating to such Company Participant benefits and accounts and the assets so transferred. With respect to all such directions for transfer, Buyer shall provide to Seller an opinion of counsel, in the form attached hereto as Exhibit A, to the effect that each and every successor plan and trust to which transfer is requested is (A) It is the intent tax-qualified under applicable provisions of Code Secs. 401(a) and 501(a) and (B) complies in all applicable respects with Code Sec. 414(l). With respect to all benefits accrued as of the date of the transfer of assets, Buyer shall preserve under all such successor plans all optional forms of benefits which are protected under Code Sec. 411(d)(6). From and after each such transfer of assets with respect to each such Employee Benefit Plan, Seller shall cease to have any liability or responsibility for all liabilities and responsibilities that Buyer has assumed (or that the Company and the Subsidiaries has retained) with respect to such plans, their assets, and the Company Participants.
(iii) Seller to apportion will make available any and all necessary records for the liabilities purpose of computing or establishing all employee benefits, and assets of Seller’s Retirement Plan such other employee benefits information or records as to provide for a transfer of liabilities smooth and assets as of the Closing, in an amount equal to the total liabilities for retirement benefits of employees the Target who remain employees of the Target immediately after the Closing which have accrued under the Seller’s Retirement Plan as of the Closing, determined as if such employees had terminated employment as of the Closing, with the determination of the amount of such assets to be transferred being made in accordance with the actuarial methods and assumptions used by the Seller’s Actuary (as defined below) for plan funding purposes for the 2006 plan year, which assumptions include a 7% interest rate and mortality in accordance with the 1983 Group Annuity Mortality Table, and taking into account projected future salary increases. The Buyer shall establish or shall cause the Target to establish a retirement plan (“Buyer’s Retirement Plan”) which shall be objectively equal in all material respects to the Seller’s Retirement Plan with respect to benefits accrued as of Closingorderly transition, including optional forms but not limited to statements of benefits. The Buyer’s Retirement Plan will assume the liability for accrued benefits accrued under the Seller’s Retirement Plan prior to the Closing with respect to employees of the Target who remain employed by the Target immediately after the Closing, contingent upon the receipt of the transferred assets as provided herein. Such amount to be transferred as of the Closing shall accrue interest at a rate Date under the defined benefit pension plans and statements of 7% per annum from account balances as of the Closing until the date of transfer, and shall be reduced by the amount of any benefit payments (plus interest at 7%) made to or on behalf of covered employees after the Closing and prior to the date of transfer. Notwithstanding the foregoing, Buyer’s Retirement Plan shall not be obligated to assume liability for any benefits accrued Date under the Seller’s Retirement Plan or to accept a transfer of assets from the Seller’s Retirement Plan if Buyer or the Target reasonably believes that such assumption or transfer could adversely affect the qualified status of the Buyer’s Retirement Plan under Section 401(a) of the Codedefined contribution plans.
(B) The amount of transferred assets as described above may be transferred in cash or in kind, to the extent a transfer in kind is approved by the Buyer. Promptly after the Closing, the Seller and the Buyer shall each file Forms 5310-A, to the extent not excepted from such filing requirement by applicable regulations, in respect of the Seller’s Retirement Plan in the case of the Seller, and the Buyer’s Retirement Plan in the case of the Buyer, and shall provide the other Party a copy thereof. The actuarial calculations required hereunder shall be provided by the Seller and performed by Xxxxxx & Associates (“Seller’s Actuary”). The Buyer will be supplied with a copy of the report of Seller’s Actuary embodying the results of such calculation. An actuary designated by the Buyer shall, at the Buyer’s expense, be entitled to confirm the accuracy of the calculations by which such results were reached. In the event of a disagreement between said actuaries, the disagreement shall be settled by reference to a third independent actuary of national standing agreed to by the Seller and the Buyer. The Seller and the Buyer shall each pay one-half of the fee charged by any such third actuary. The Seller and the Buyer shall cause any required advance notification to the IRS regarding transfers of plan assets to be made and shall cooperate to secure any approval by any government agency which is required by law for a transfer of assets and liabilities for benefits from the Seller’s Retirement Plan to the Buyer’s Retirement Plan.
(C) The Buyer shall be entitled to receive from the Seller, within a reasonable time after the Closing and at all times thereafter, such pertinent data and information that the Buyer may reasonably require (including, but not limited to, participant and beneficiary records) to implement the requirements of this §6(h), to administer the Buyer’s Retirement Plan and to respond to any claims, audits or examinations. The Seller and the Buyer shall cooperate with each other in all respects relating to this §6(i) and, except as otherwise set forth, shall each pay their respective expenses arising from the obligations undertaken by each pursuant to this §6(i).
(D) Except as provided in §6(d) and 6(i)(ii) of this Agreement, nothing contained in §6(i) shall be deemed to require the Buyer to maintain a particular benefit plan for any particular period of time or as preventing the Buyer from amending or terminating Buyer’s 401(k) plan, Buyer’s Retirement Plan or any other employee benefit plan, program, policy or arrangement at any time and for any reason.
Appears in 1 contract
Employee Pension Benefit Plans. The Seller’s Hecla Mining Company Retirement Plan (“Seller’s Retirement Plan”) has beenAs soon as practicable after the ------------------------------ Closing Date, and will remainafter giving and receiving appropriate governmental notifications and approvals, sponsored and maintained the Parties shall take the following actions with regard to those Employee Benefit Plans listed on Schedule 3.25(b) (or shall cause the following actions to be taken by the Seller for the trustees, custodians, and, where appropriate, actuaries and other professionals retained by such plans) in which any participant was an employee of, was terminated with a deferred vested benefit of its and its Affiliates’ eligible hourly and salaried employees. The Seller shall fully vest all hourly and salaried employees from, or was a retiree from any of the Target who remain employees of Company and the Target immediately after Subsidiaries (or their respective predecessors) prior to the Closing under Date (such participants, together with their beneficiaries, are referred to collectively herein as "Company Participants"): With respect to those Employee Benefit Plans (indicated by an "A" in parentheses alongside its listing in Schedule 3.25(b)) which are non-qualified defined benefit plans, non-qualified defined contribution plans, qualified defined benefit plans, deferred compensation plans or employee stock option plans, Parent, Seller’s Retirement Plan , the Company, and the Subsidiaries shall amend the Employee Benefit Plans to provide, effective as of the Closing. The Buyer Closing Date, that each employee of the Company and the Target Subsidiaries who is a participant in any such Employee Benefit Plan shall establish have a new retirement plan comparable fully vested and nonforteitable right to Seller’s Retirement Plan to cover hourly and salaried employees any benefit or account accrued in his or her name, in each case as of the Target Closing Date. Effective as of the Closing Date, the Company and the Subsidiaries shall cease sponsorship of and participation in such Employee Benefit Plans and such Employee Benefit Plans shall be sponsored solely by Seller. Parent, Seller and the Company and the Subsidiaries shall take all actions necessary to terminate the sponsorship and participation of the Company and the Subsidiaries in such Employee Benefit Plans and to ensure that Seller sponsors such plans as of the Closing Date, and Seller shall be solely responsible for all liabilities and obligations with respect to future retirement benefit accruals on and after such plans following the Closing. It With respect to those Employee Benefit Plans which are qualified or non-qualified defined benefit plans, Seller shall take all actions necessary to amend such plans to provide that for purposes of determining participants' eligibility for early retirement benefits, service will include service with Buyer and retirement from employment with Buyer shall be treated as retirement from active employment with Seller. With respect to each Employee Benefit Plan (indicated by a "B" in parentheses alongside its listing on Schedule 3.25(b)) which is a tax-qualified defined contribution pension plan (other than an employee stock ownership plan) and which covers Company Participants as well as other participants ("Non-Company Participants"), Seller shall direct to Buyer's successor plan and trustee a transfer, in cash, securities (other than securities of Seller or any affiliate), other property, or any combination thereof as agreed upon by the intent Parties pursuant to good faith bargaining (or in particular investments (other than securities of Seller or any affiliate) if such plan permitted participant directed investments and both such plan and Buyer's successor plan and trustee will permit such transfer of particular investments) of that portion of such plan's assets (including all outstanding Company Participant loans, if any, and including allocable earnings and losses of such plan or, in the case of participant-directed investments, including earnings and losses of the individual Company Participant accounts), valued as of the date of such transfer, allocable to those Company Participants with a benefit or account (whether or not vested) under such plan (other than benefits or accounts which have been distributed in the normal course as of the date of such transfer). Thereafter Buyer shall assume (or the applicable Company or Subsidiary shall retain) all liabilities and responsibilities relating to such Company Participant benefits and accounts and the assets so transferred. With respect to all such directions for transfer, Buyer shall provide to Seller to apportion an opinion of counsel, in the assets and liabilities of Seller’s Retirement Plan in accordance with and subject form attached hereto as Exhibit A, to the following provisions of this §6(i).
effect that each and every successor plan and trust to which transfer is requested is (A) It is the intent tax-qualified under applicable provisions of Code Secs. 401(a) and 501(a) and (B) complies in all applicable respects with Code Sec. 414(l). With respect to all benefits accrued as of the date of the transfer of assets, Buyer shall preserve under all such successor plans all optional forms of benefits which are protected under Code Sec. 411(d)(6). From and after each such transfer of assets with respect to each such Employee Benefit Plan, Seller shall cease to have any liability or responsibility for all liabilities and responsibilities that Buyer has assumed (or that the Company and the Subsidiaries has retained) with respect to such plans, their assets, and the Company Participants. Seller to apportion will make available any and all necessary records for the liabilities purpose of computing or establishing all employee benefits, and assets of Seller’s Retirement Plan such other employee benefits information or records as to provide for a transfer of liabilities smooth and assets as of the Closing, in an amount equal to the total liabilities for retirement benefits of employees the Target who remain employees of the Target immediately after the Closing which have accrued under the Seller’s Retirement Plan as of the Closing, determined as if such employees had terminated employment as of the Closing, with the determination of the amount of such assets to be transferred being made in accordance with the actuarial methods and assumptions used by the Seller’s Actuary (as defined below) for plan funding purposes for the 2006 plan year, which assumptions include a 7% interest rate and mortality in accordance with the 1983 Group Annuity Mortality Table, and taking into account projected future salary increases. The Buyer shall establish or shall cause the Target to establish a retirement plan (“Buyer’s Retirement Plan”) which shall be objectively equal in all material respects to the Seller’s Retirement Plan with respect to benefits accrued as of Closingorderly transition, including optional forms but not limited to statements of benefits. The Buyer’s Retirement Plan will assume the liability for accrued benefits accrued under the Seller’s Retirement Plan prior to the Closing with respect to employees of the Target who remain employed by the Target immediately after the Closing, contingent upon the receipt of the transferred assets as provided herein. Such amount to be transferred as of the Closing shall accrue interest at a rate Date under the defined benefit pension plans and statements of 7% per annum from account balances as of the Closing until the date of transfer, and shall be reduced by the amount of any benefit payments (plus interest at 7%) made to or on behalf of covered employees after the Closing and prior to the date of transfer. Notwithstanding the foregoing, Buyer’s Retirement Plan shall not be obligated to assume liability for any benefits accrued Date under the Seller’s Retirement Plan or to accept a transfer of assets from the Seller’s Retirement Plan if Buyer or the Target reasonably believes that such assumption or transfer could adversely affect the qualified status of the Buyer’s Retirement Plan under Section 401(a) of the Codedefined contribution plans.
(B) The amount of transferred assets as described above may be transferred in cash or in kind, to the extent a transfer in kind is approved by the Buyer. Promptly after the Closing, the Seller and the Buyer shall each file Forms 5310-A, to the extent not excepted from such filing requirement by applicable regulations, in respect of the Seller’s Retirement Plan in the case of the Seller, and the Buyer’s Retirement Plan in the case of the Buyer, and shall provide the other Party a copy thereof. The actuarial calculations required hereunder shall be provided by the Seller and performed by Xxxxxx & Associates (“Seller’s Actuary”). The Buyer will be supplied with a copy of the report of Seller’s Actuary embodying the results of such calculation. An actuary designated by the Buyer shall, at the Buyer’s expense, be entitled to confirm the accuracy of the calculations by which such results were reached. In the event of a disagreement between said actuaries, the disagreement shall be settled by reference to a third independent actuary of national standing agreed to by the Seller and the Buyer. The Seller and the Buyer shall each pay one-half of the fee charged by any such third actuary. The Seller and the Buyer shall cause any required advance notification to the IRS regarding transfers of plan assets to be made and shall cooperate to secure any approval by any government agency which is required by law for a transfer of assets and liabilities for benefits from the Seller’s Retirement Plan to the Buyer’s Retirement Plan.
(C) The Buyer shall be entitled to receive from the Seller, within a reasonable time after the Closing and at all times thereafter, such pertinent data and information that the Buyer may reasonably require (including, but not limited to, participant and beneficiary records) to implement the requirements of this §6(h), to administer the Buyer’s Retirement Plan and to respond to any claims, audits or examinations. The Seller and the Buyer shall cooperate with each other in all respects relating to this §6(i) and, except as otherwise set forth, shall each pay their respective expenses arising from the obligations undertaken by each pursuant to this §6(i).
(D) Except as provided in §6(d) and 6(i)(ii) of this Agreement, nothing contained in §6(i) shall be deemed to require the Buyer to maintain a particular benefit plan for any particular period of time or as preventing the Buyer from amending or terminating Buyer’s 401(k) plan, Buyer’s Retirement Plan or any other employee benefit plan, program, policy or arrangement at any time and for any reason.
Appears in 1 contract
Samples: Stock Purchase Agreement (Armstrong World Industries Inc)
Employee Pension Benefit Plans. The Seller’s Hecla Mining Company Retirement Plan Except as disclosed on EXHIBIT 4.1.18, neither Borrower nor any Subsidiary of Borrower has established, maintained or contributed to (“Seller’s Retirement Plan”or had the obligation to contribute to) has been, and will remain, sponsored and maintained by the Seller for the benefit of its and its Affiliates’ eligible hourly and salaried employeesany Employee Pension Benefit Plans. The Seller shall fully vest all hourly and salaried employees of the Target who remain employees of the Target immediately after the Closing under Seller’s Retirement Plan as of the Closing. The Buyer and the Target shall establish a new retirement plan comparable to Seller’s Retirement Plan to cover hourly and salaried employees of the Target with With respect to future retirement benefit accruals its Employee Pension Benefit Plans, Borrower and/or its Subsidiaries as appropriate will have made, on and after the Closing. It is the intent of the Buyer and the Seller to apportion the assets and liabilities of Seller’s Retirement Plan in accordance with and subject to the following provisions of this §6(i).
(A) It is the intent of the Buyer and the Seller to apportion the liabilities and assets of Seller’s Retirement Plan to provide for a transfer of liabilities and assets as of the Closing, in an amount equal to the total liabilities for retirement benefits of employees the Target who remain employees of the Target immediately after the Closing which have accrued under the Seller’s Retirement Plan as of the Closing, determined as if such employees had terminated employment as of the Closing, with the determination of the amount of such assets to be transferred being made in accordance with the actuarial methods and assumptions used by the Seller’s Actuary (as defined below) for plan funding purposes for the 2006 plan year, which assumptions include a 7% interest rate and mortality in accordance with the 1983 Group Annuity Mortality Table, and taking into account projected future salary increases. The Buyer shall establish or shall cause the Target to establish a retirement plan (“Buyer’s Retirement Plan”) which shall be objectively equal in all material respects to the Seller’s Retirement Plan with respect to benefits accrued as of Closing, including optional forms of benefits. The Buyer’s Retirement Plan will assume the liability for benefits accrued under the Seller’s Retirement Plan prior to the Closing with respect Date, all payments required to employees be made by it on or prior to the Closing Date. Borrower has made available to Lender a true and correct copy of the Target who remain employed most current Form 5500 and any other form or filing required to be submitted to any governmental agency with regard to all Employee Benefit Plans maintained by Borrower and/or any Subsidiary of Borrower. All Employee Benefit Plans of Borrower and its Subsidiaries have been operated in material compliance with the Target immediately after the Closing, contingent upon the receipt provisions of the transferred assets governing documents and with all applicable laws including, without limitation, ERISA and the Code and the regulations and rulings thereunder. Neither Borrower nor any Subsidiary of Borrower has incurred any withdrawal liability, nor does Borrower or any of its Subsidiaries, except as provided hereindisclosed on EXHIBIT 4.1.18, have any contingent withdrawal liability, under ERISA to any Multiemployer Plan. Such amount The present value of all accrued benefits under each Single Employer Plan maintained by each Borrower and/or any of its Subsidiaries (based on those assumptions used to be transferred fund the Plans) did not, as of the Closing shall accrue interest at a rate of 7% per annum from the Closing until the last annual valuation date of transfer, and shall be reduced by the amount of any benefit payments (plus interest at 7%) made to or on behalf of covered employees after the Closing and prior to the date on which this representation is made or deemed made, exceed the value of transferthe assets of such Plan allocable to such accrued benefits. Notwithstanding All liabilities relating to accrued benefits or individual accounts under those Employee Benefit Plans which are exempt from Part IV of ERISA have been funded (either through insurance or otherwise) as of the foregoingdate of this representation. There are no pending actions, Buyer’s Retirement Plan shall not be obligated to assume liability claims or lawsuits which have been asserted or instituted against Borrower or its Subsidiaries' Employee Pension Benefit Plans, the assets of any of the trusts under such plans, the plan sponsor, the plan administrator or against any fiduciary of any of such Employee Pension Benefit Plans (other than routine benefit claims) nor does Borrower or any of its Subsidiaries have knowledge of facts which could form the basis for any benefits accrued such action, claim or lawsuit. There are no investigations or audits of Borrower's or its Subsidiaries' Employee Pension Benefit Plans, any trusts under the Seller’s Retirement Plan or to accept a transfer of assets from the Seller’s Retirement Plan if Buyer or the Target reasonably believes that such assumption or transfer could adversely affect the qualified status of the Buyer’s Retirement Plan under Section 401(a) of the Code.
(B) The amount of transferred assets as described above may be transferred in cash or in kind, to the extent a transfer in kind is approved by the Buyer. Promptly after the Closingplans, the Seller and the Buyer shall each file Forms 5310-A, to the extent not excepted from such filing requirement by applicable regulations, in respect of the Seller’s Retirement Plan in the case of the Seller, and the Buyer’s Retirement Plan in the case of the Buyer, and shall provide the other Party a copy thereof. The actuarial calculations required hereunder shall be provided by the Seller and performed by Xxxxxx & Associates (“Seller’s Actuary”). The Buyer will be supplied with a copy of the report of Seller’s Actuary embodying the results of such calculation. An actuary designated by the Buyer shall, at the Buyer’s expense, be entitled to confirm the accuracy of the calculations by which such results were reached. In the event of a disagreement between said actuariesplan sponsor, the disagreement shall be settled by reference to a third independent actuary plan administrator or any fiduciary of national standing agreed to by the Seller and the Buyer. The Seller and the Buyer shall each pay one-half of the fee charged by any such third actuary. The Seller and Employee Pension Benefit Plans which have been threatened or instituted nor does Borrower or any of its Subsidiaries have knowledge of facts which could form the Buyer shall cause any required advance notification to the IRS regarding transfers of plan assets to be made and shall cooperate to secure any approval by any government agency which is required by law for a transfer of assets and liabilities for benefits from the Seller’s Retirement Plan to the Buyer’s Retirement Plan.
(C) The Buyer shall be entitled to receive from the Seller, within a reasonable time after the Closing and at all times thereafter, such pertinent data and information that the Buyer may reasonably require (including, but not limited to, participant and beneficiary records) to implement the requirements of this §6(h), to administer the Buyer’s Retirement Plan and to respond to any claims, audits or examinations. The Seller and the Buyer shall cooperate with each other in all respects relating to this §6(i) and, except as otherwise set forth, shall each pay their respective expenses arising from the obligations undertaken by each pursuant to this §6(i).
(D) Except as provided in §6(d) and 6(i)(ii) of this Agreement, nothing contained in §6(i) shall be deemed to require the Buyer to maintain a particular benefit plan basis for any particular period of time such investigation or as preventing the Buyer from amending or terminating Buyer’s 401(k) plan, Buyer’s Retirement Plan or any other employee benefit plan, program, policy or arrangement at any time and for any reasonaudit.
Appears in 1 contract
Samples: Loan Agreement (Syms Corp)
