Common use of ERISA and Related Matters Clause in Contracts

ERISA and Related Matters. (a) As of the Closing Date, neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.09. (b) The Borrower and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan or any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan, except in each case for a liability that could not reasonably be expected to have a Material Adverse Effect. (c) As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has there been a determination that any Pension Plan is considered an at-risk plan or a Multiemployer Plan is in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Sections 302 or 303 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan. (d) Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code. (e) No Termination Event has occurred or is reasonably expected to occur. (f) Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to the best knowledge of the Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan. (g) Each Loan Party represents and warrants as of the Closing Date that such Loan Party is not and will not be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code; (3) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA. (h) The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $2,000,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA. (i) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all Applicable Laws, except where failure to so comply, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and other payments required by applicable Non-U.S. Plan documents or Applicable Laws have been made or remitted or accrued to or in respect of the Non-U.S. Plans in accordance with such Non-U.S. Plan documents and Applicable Laws, except where failure to do so, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. The Non-U.S. Plans, to the extent required for the Tax status intended for such plans, are duly registered under Tax legislation and any other Applicable Laws which require registration and no event has occurred which could cause the loss of such registered status except where failure to register or the loss of registered status, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There are no outstanding disputes concerning the Non-U.S. Plans or the assets thereof which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (j) None of the Loan Parties or any Subsidiary has established, is bound by, is subject to, or has any liability or contingent liability under, a Canadian Defined Benefit Plan. None of the Loan Parties nor any Subsidiary has at any time been an employer in, or has participated in, or has contributed to or has been required to contribute to, a Canadian Defined Benefit Plan in respect of which it currently has any liability or contingent liability.

ERISA and Related Matters. As used herein the term "IMSL Employee ------------------------- Benefit Plan" shall mean all "employee benefit plans," as defined by Section 3(3) of the Employee Retirement Security Act of 1974, as amended ("ERISA"), and any other employee benefit arrangements or payroll practices including, without limitation, sick leave, vacation pay, salary continuation for disability, consulting or other compensation arrangements (whether funded or unfunded), retirement, deferred or incentive compensation, bonuses, stock purchase, hospitalization, medical insurance, severance, life insurance and scholarship programs maintained or made available by IMSL (or any entity which is a member of a "controlled group of corporations" with or is under "common control" with IMSL as defined in Section 414(b) or (c) of the Code (a "Related Party")) to any current or former employee of IMSL or any Related Party to which IMSL or any Related Party contributed or is obligated to make payments thereunder. (a) As There are no pending claims or lawsuits which have been asserted or instituted against any IMSL Employee Benefit Plan, the assets of any of the Closing Datetrusts under such Plans, neither the Borrower nor IMSL or a Related Party or against any ERISA Affiliate maintains or contributes to, or has fiduciary of any obligation under, any IMSL Employee Benefit Plans other than those identified on Schedule 5.09Plan with respect to the operation of such plans, nor does IMSL have knowledge of facts which could form the basis for any such claim or lawsuit. (b) The Borrower All amendments and each ERISA Affiliate is actions required to have been taken prior to the date hereof to bring the IMSL Employee Benefit Plans and the Pension Plans into conformity in compliance all material respects with all of the applicable provisions of ERISA, the Code ERISA and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to other applicable laws have a Material Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by the Borrower made or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan or any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan, except in each case for a liability that could not reasonably be expected to have a Material Adverse Effecttaken. (c) As None of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based IMSL Employee Benefit Plans which are "welfare benefit restrictions under Section 436 of the Code, nor has there been a determination that any Pension Plan is considered an at-risk plan or a Multiemployer Plan is in endangered or critical status plans" within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Sections 302 or 303 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a3(1) of ERISA provides for continuing benefits or coverage for any participant or any beneficiary of a participant after such participant's termination of employment except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, ("COBRA") or at the expense of the participant or the participant's beneficiary. IMSL and each Related Party has complied in all material respects with respect to any Pension Planthe notice and continuation requirements of COBRA. (d) Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, neither the Borrower Neither IMSL nor any ERISA Affiliate has: (i) engaged Related Party has withdrawn in a nonexempt prohibited transaction described in Section 406 of the ERISA complete or Section 4975 of the Code, (ii) incurred partial withdrawal from any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code. (e) No Termination Event has occurred or is reasonably expected to occur. (f) Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to the best knowledge of the Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit multi-employer plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan. (g) Each Loan Party represents and warrants as of the Closing Date that such Loan Party is not and will not be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code; (3) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA. (hSection 4001(a)(3) The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $2,000,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA. (i) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all Applicable Laws, except where failure to so comply, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and other payments required by applicable Non-U.S. Plan documents or Applicable Laws have been made or remitted or accrued to or in respect of the Non-U.S. Plans in accordance with such Non-U.S. Plan documents and Applicable Laws, except where failure to do so, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. The Non-U.S. Plans, prior to the extent required for the Tax status intended for such plans, are duly registered under Tax legislation and any other Applicable Laws which require registration and no event has occurred which could cause the loss of such registered status except where failure to register or the loss of registered status, individually or in the aggregate, could not reasonably be expected to have a Material Adverse EffectClosing Date. There are no outstanding disputes concerning the Non-U.S. Plans or the assets thereof which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (j) None of the Loan Parties or any Subsidiary has established, is bound by, is subject to, or has any liability or contingent liability under, a Canadian Defined Benefit Plan. None of the Loan Parties Neither IMSL nor any Subsidiary has at any time been an employer in, or has participated in, or Related Party has contributed to or has been required obligated to contribute to, a Canadian Defined Benefit Plan in respect to any multi-employer plan within the meaning of which it currently has any liability or contingent liabilitySection 4001(a)(3) of ERISA.

ERISA and Related Matters. (a) As Set forth on SCHEDULE 3.16 (a) is a list of all "employee pension benefit plans" and all "employee welfare benefit plans" within the meaning of, respectively, Sections 3(2) and 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (determined without regard to any regulatory exceptions to such statutory definitions), in which employees of any Seller or Spentonbush/Red Star Companies, Inc. ("Spentonbush/Red Star") participate or have participated within the six-year period ending on the Closing DateDate (collectively, neither including any Multiemployer Plans as defined below, the Borrower nor "PLANS"). Except as set forth on SCHEDULE 3.16(a), there are no "multiemployer plans" within the meaning of Section 3(37) of ERISA ("MULTIEMPLOYER PLANS") in which any ERISA Affiliate maintains Seller or contributes to, Spentonbush/Red Star participate or has have been a participating employer within the last six (6) years or in which employees of any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.09such entities participate or have participated within the last six (6) years. (b) The Borrower and each ERISA Affiliate is in compliance with All contributions which are required under any Plan for all applicable provisions of ERISA, plan years ending on or prior to the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for date hereof which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has become due have been determined by the IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan or any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan, except in each case for a liability that could not reasonably be expected to have a Material Adverse Effectmade. (c) As of the Closing DateEach Plan is in material compliance, no Pension in form and in operation, with its terms and all applicable laws. Neither Hesx, Xarent nor any Seller has received any written notice (formal or informal) that any Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has there been a determination that any Pension Plan is considered an at-risk plan or a Multiemployer Plan is operated in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Sections 302 or 303 of ERISA or the terms violation of any Pension Plan prior to the due dates of such contributions under Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Planapplicable laws. (d) Except where No excise tax is due (or would be due in the failure absence of a waiver) under Code Section 4971 with respect to any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code. (e) No Termination Event has occurred or Each Seller and all ERISA Affiliates have paid all premiums (and interest charges and penalties for late payment, if applicable) due to the PBGC with respect to each Pension Plan which is reasonably expected to occurcovered by Title IV of ERISA for each plan year thereof for which such premiums are required. (f) Except where the failure of any None of the following representations to be correct in all material respects could not reasonably be expected to Sellers nor any ERISA Affiliate have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to the best knowledge of the Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan unpaid "withdrawal liability" (as defined in by Section 3(1) 4201 of ERISA) currently maintained or contributed to by any Multiemployer Plan which affects the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Planemployees of the Vessel Business. (g) Each Loan Party represents Except as set forth on SCHEDULE 3.16(i), the execution of this Agreement and warrants as the consummation of the Closing Date that such Loan Party is not and transactions contemplated hereby will not be (1) an result in any payment becoming due from any Seller under any employee benefit plan subject to Title I of ERISA, (2) a arrangement or plan or account subject to Section 4975 of the Code; (3) an entity deemed to hold “plan assets” any Plan. There is no agreement, plan, or arrangement covering any current or former employee, director, or consultant of any such plans Seller that, individually or accounts for purposes collectively, could give rise to the payment of ERISA any amount that would not be deductible pursuant to the terms of Code Sections 162(m) or the Code; or (4) a “governmental plan” within the meaning of ERISA.280G. (h) The present value of As used in this Section 3.16, the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $2,000,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the following terms “current value” and “present value” shall have the meaning specified in section 3 of ERISA. (i) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all Applicable Laws, except where failure to so comply, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and other payments required by applicable Non-U.S. Plan documents or Applicable Laws have been made or remitted or accrued to or in respect of the Non-U.S. Plans in accordance with such Non-U.S. Plan documents and Applicable Laws, except where failure to do so, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. The Non-U.S. Plans, to the extent required for the Tax status intended for such plans, are duly registered under Tax legislation and any other Applicable Laws which require registration and no event has occurred which could cause the loss of such registered status except where failure to register or the loss of registered status, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There are no outstanding disputes concerning the Non-U.S. Plans or the assets thereof which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (j) None of the Loan Parties or any Subsidiary has established, is bound by, is subject to, or has any liability or contingent liability under, a Canadian Defined Benefit Plan. None of the Loan Parties nor any Subsidiary has at any time been an employer in, or has participated in, or has contributed to or has been required to contribute to, a Canadian Defined Benefit Plan in respect of which it currently has any liability or contingent liability.meanings set forth below:

ERISA and Related Matters. (a) As of the Closing Date, neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified Set forth on Schedule 5.09. 2.13 hereto is a true and complete list of each employee benefit plan (b) The Borrower and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and material fringe benefit plan contributed to or required to be contributed to within the thirty-six (36) months preceding the date of this Agreement by a Seller or any Subsidiary, with respect to any present or former employee of a Seller or any Subsidiary and/or the Business (“Employee Benefit Plans”). Except as set forth on Schedule 2.13 hereto, no Employee Benefit Plan is sponsored or maintained by a Seller or any Subsidiary. Except as set forth on Schedule 2.13 hereto, neither the Sellers nor any Subsidiary (nor any employer (whether or not incorporated) that would be treated together with the Seller or any Subsidiary as a single employer within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended), has ever maintained or contributed to, or had any obligation to contribute to (or borne any liability with respect to) any “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA, that is a “multiemployer plan,” within the meaning of Section 3(37) of ERISA, or subject to Section 412 of the Code, or Section 302 or Title IV of ERISA. Except for the amendments set forth in Schedule 2.13, for which a determination has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each been requested, each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualifiedCode, and each trust related to such plan has has, as currently in effect, been determined to be exempt under so qualified by the Internal Revenue Service, and since the date of each such determination, no event has occurred and no condition or circumstance has existed that resulted or is likely to result in the revocation of any such determination. The Sellers and each Subsidiary have complied in all respects with the applicable requirements of Part 6 of Subtitle B of Title I of ERISA and Section 501(a) 4980B of the Code (“COBRA”), and will comply with all COBRA obligations arising in connection with the transactions contemplated hereby, and neither the Sellers nor any Subsidiary is subject to any liability as a result of any failure to administer or operate any “group health plan” (as defined in COBRA) in compliance with COBRA, except for to the extent that any such plans that have non-compliance would not yet received determination letters but for result in material liability to the Purchaser. Except as set forth in Schedule 2.13 hereto, full payment has been made of all amounts which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by the Borrower Sellers or any ERISA Affiliate which remains unsatisfied for Subsidiary is required under applicable Regulation or under any taxes Employee Benefit Plan or penalties any Contract relating to any Employee Benefit Plan to have paid as contributions or premiums thereunder as of the last day of the most recent fiscal year of such Employee Benefit Plan ended prior to the date hereof. To the Sellers’ Knowledge, no litigation or administrative or other proceeding, audit, examination or investigation is pending or asserted, or, to the best knowledge of the Sellers, threatened, anticipated or expected to be asserted with respect to any Employee Benefit Plan or the assets of any Multiemployer Plan or such plan (other than routine claims for benefits arising in the ordinary course). Except as set forth on Schedule 2.13 hereto, the execution of this Agreement and the consummation of the transactions contemplated hereby, do not constitute a triggering event under any obligation in connection with the termination of or withdrawal from any Non-U.S. Employee Benefit Plan, except policy, arrangement, statement, commitment or agreement, whether or not legally enforceable, which (either alone or upon the occurrence of any additional or subsequent event) will or may result in each case for a liability that could not reasonably be expected to have a Material Adverse Effect. any payment (c) As whether of the Closing Dateseverance pay or otherwise), no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under “parachute payment” (as such term is defined in Section 436 280G of the Code), nor has there been a determination that acceleration, vesting or increase in benefits to any Pension Plan is considered an at-risk plan present or a Multiemployer Plan is in endangered former employee or critical status within the meaning of Sections 430, 431 and 432 director of the Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has the Borrower Sellers or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing Subsidiary. Except as required by Sections 412 or 430 of the Code, Sections 302 or 303 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan. (d) Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effectset forth on Schedule 2.13 hereto, neither the Borrower nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code. (e) No Termination Event has occurred or is reasonably expected to occur. (f) Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to the best knowledge of the Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan. (g) Each Loan Party represents and warrants as of the Closing Date that such Loan Party is not and will not be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code; (3) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA. (h) The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $2,000,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA. (i) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all Applicable Laws, except where failure to so comply, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and other payments required by applicable Non-U.S. Plan documents or Applicable Laws have been made or remitted or accrued to or in respect of the Non-U.S. Plans in accordance with such Non-U.S. Plan documents and Applicable Laws, except where failure to do so, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. The Non-U.S. Plans, to the extent required for the Tax status intended for such plans, are duly registered under Tax legislation and any other Applicable Laws which require registration and no event has occurred which could cause the loss of such registered status except where failure to register or the loss of registered status, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There are no outstanding disputes concerning the Non-U.S. Plans or the assets thereof which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (j) None of the Loan Parties or any Subsidiary has established, is bound by, is subject to, or has any liability or contingent liability under, a Canadian Defined Benefit Plan. None of the Loan Parties Sellers nor any Subsidiary has at any time been an employer in, or has participated in, or has contributed to or has been required to contribute to, a Canadian Defined obligation under any Employee Benefit Plan in respect of which it currently has or otherwise to provide post-employment or retiree welfare benefits to any liability former employee or contingent liabilityany other Person, except as specifically required by COBRA.

ERISA and Related Matters. (a) As Section 2.12(a) of the Closing Date, neither Disclosure Schedule contains a complete and accurate list of all the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Seller Plans and other than those identified on Schedule 5.09benefit obligations with respect to the Business. (b) The Borrower Seller has made available to the Purchaser: (i) all documents that set forth the terms of each Seller Plan or other benefit obligation and each ERISA Affiliate of any related trust, including (A) plan descriptions and summary plan descriptions of Plans for which the Seller is in compliance with all applicable provisions of ERISArequired to prepare and distribute plan descriptions and summary plan descriptions, and (B) summaries and descriptions furnished to participants and beneficiaries regarding plans or other benefit obligations for which a plan description or summary plan description is not required; (ii) the Code and the regulations and published interpretations thereunder most recent actuarial report with respect to any Seller Title IV Plan; (iii) the Form 5500 filed for the most recent Plan year with respect to each Seller Plan, including all Employee Benefit Plans except schedules thereto and the opinions of independent accountants; and (iv) with respect to Pension Plans, the most recent determination letter for any required amendments for which the remedial amendment period as defined in Section 401(b) each Plan of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. Seller. (i) Each Employee Benefit Seller Plan that is intended to be qualified under Code Section 401(a) of has or has applied for a current favorable determination letter from the Code has been determined by Internal Revenue Service indicating that the IRS to be Plan is so qualified, and each trust related to none of such plan Plans has been determined subject to be exempt any assertion by any governmental Authority that it is not qualified, and nothing has occurred with respect to the operation of any such Plan which is reasonably likely to cause the imposition of any material liability against the Business or the Purchaser under ERISA or other applicable laws other than the Code. With respect to all other Seller Plans and other benefits obligations with respect to the Business, nothing has occurred which is reasonably likely to cause the imposition of any material liability against the Business or the Purchaser under ERISA, the Code, or other applicable laws. Without limiting the foregoing: (A) No transaction prohibited by ERISA Section 501(a406 and no "prohibited transaction" under Code Section 4975(c) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties occurred with respect to any Employee Benefit Seller Plan that is reasonably likely to result in a material liability to the Business or any Multiemployer Plan or any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan, except in each case for a liability that could not reasonably be expected to have a Material Adverse EffectPurchaser. (cB) As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has there been a determination that any Pension Plan is considered an at-risk plan or a Multiemployer Plan is in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the IRS been received or requested All contributions required with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Sections 302 or 303 of ERISA or the terms of any Pension Seller Plan prior have been paid to the due dates of such contributions under Sections 412 applicable Seller Plan or 430 of trust when due, and the Code or Sections 302 or 303 of ERISA, nor Seller has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA no liability to the Pension Benefit Guaranty Corporation with respect to any Pension Plan. (dC) Except where the failure All contributions and payments made or accrued with respect to all Seller Plans and other benefit obligations are deductible under Code Section 162 or Section 404. No amount, or any asset of any Seller Plan, is subject to tax as unrelated business taxable income. (ii) Other than routine claims for benefits submitted by participants or beneficiaries, no Claim against, or legal proceeding involving any Seller Plan or other benefit obligation that would have any Material Adverse Effect to the Business or the Purchaser is pending or, to the Seller's Knowledge, is threatened. (iii) Neither the Seller nor any ERISA Affiliate contributes to or otherwise participates in any Multi-Employer Plan and neither the Seller nor any ERISA Affiliate has been notified of the following representations to be correct withdrawal liability by any Multi-Employer Plan. (iv) The Seller has complied in all material respects could not reasonably be expected with the provisions of ERISA Section 601 et seq. and Code Section 4980B. (v) No payment that is owed or may become due to have a Material Adverse Effectany Business Employee or any director, neither the Borrower nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 officer, employee, or agent of the ERISA Seller as a result of the consummation of transactions contemplated hereby will be non- deductible to the Purchaser or subject to Tax under Code Section 280G or Section 4975 4999; nor will the Purchaser be required to "gross up" or otherwise compensate any such person because of the Code, (ii) incurred imposition of any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make excise tax on a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Codesuch person. (evi) No Termination Event has occurred The consummation of transactions contemplated hereby and hereunder will not result in the payment, vesting, or is reasonably expected to occur. (f) Except where the failure acceleration of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to the best knowledge of the Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Planbenefit. (g) Each Loan Party represents and warrants as of the Closing Date that such Loan Party is not and will not be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code; (3) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA. (h) The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $2,000,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA. (i) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all Applicable Laws, except where failure to so comply, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and other payments required by applicable Non-U.S. Plan documents or Applicable Laws have been made or remitted or accrued to or in respect of the Non-U.S. Plans in accordance with such Non-U.S. Plan documents and Applicable Laws, except where failure to do so, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. The Non-U.S. Plans, to the extent required for the Tax status intended for such plans, are duly registered under Tax legislation and any other Applicable Laws which require registration and no event has occurred which could cause the loss of such registered status except where failure to register or the loss of registered status, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There are no outstanding disputes concerning the Non-U.S. Plans or the assets thereof which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (j) None of the Loan Parties or any Subsidiary has established, is bound by, is subject to, or has any liability or contingent liability under, a Canadian Defined Benefit Plan. None of the Loan Parties nor any Subsidiary has at any time been an employer in, or has participated in, or has contributed to or has been required to contribute to, a Canadian Defined Benefit Plan in respect of which it currently has any liability or contingent liability.

ERISA and Related Matters. (a) a. As of the Closing Date, neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.09. (b) b. The Borrower and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan or any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan, except in each case for a liability that could not reasonably be expected to have a Material Adverse Effect. (c) c. As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has there been a determination that any Pension Plan is considered an at-risk plan or a Multiemployer Plan is in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Sections 302 or 303 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan. (d) d. Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code. (e) e. No Termination Event has occurred or is reasonably expected to occur. (f) f. Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to the best knowledge of the Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan. (g) g. Each Loan Party represents and warrants as of the Closing Date that such Loan Party is not and will not be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code; (3) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA. (h) h. The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $2,000,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA. (i) i. All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all Applicable Laws, except where failure to so comply, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and other payments required by applicable Non-U.S. Plan documents or Applicable Laws have been made or remitted or accrued to or in respect of the Non-U.S. Plans in accordance with such Non-U.S. Plan documents and Applicable Laws, except where failure to do so, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect. The Non-U.S. Plans, to the extent required for the Tax status intended for such plans, are duly registered under Tax legislation and any other Applicable Laws which require registration and no event has occurred which could cause the loss of such registered status except where failure to register or the loss of registered status, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There are no outstanding disputes concerning the Non-U.S. Plans or the assets thereof which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (j) j. None of the Loan Parties or any Subsidiary has established, is bound by, is subject to, or has any liability or contingent liability under, a Canadian Defined Benefit Plan. None of the Loan Parties nor any Subsidiary has at any time been an employer in, or has participated in, or has contributed to or has been required to contribute to, a Canadian Defined Benefit Plan in respect of which it currently has any liability or contingent liability.