Common use of ERISA Certification Clause in Contracts

ERISA Certification. Prior to admitting one or more ERISA Investors which would result in twenty-five percent (25%) or more of the total value of any class of equity interests in a Borrower being held by “benefit plan investors” within the meaning of Section 3(42) of ERISA, such Borrower shall deliver either (A) a favorable written opinion of counsel addressed to Lenders and reasonably acceptable to Administrative Agent, regarding the status of such Borrower as an Operating Company (or a copy of such opinion addressed to the Investors or another Borrower, reasonably acceptable to Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to Administrative Agent) or (B) a certificate, addressed to the Administrative Agent, signed by a Responsible Officer of each such Borrower after consultation with nationally recognized ERISA counsel, stating that the underlying assets of such Borrower do not constitute Plan Assets because the equity interests issued by such Borrower, in which a “benefit plan investor” within the meaning of Section 3(42) of ERISA has such an interest, are “publicly offered securities” within the meaning of the Plan Asset Regulation; and (ii) with respect to each Borrower, no later than sixty (60) days after the first day of each “annual valuation period” (as defined in the Plan Asset Regulations) of such Borrower in the case of clause (1) below or thirty (30) days after the end of such Borrower’s fiscal year in the case of clause (2) or clause (3), below, a certificate signed by a Responsible Officer of such Borrower that (1) such Borrower has remained and still is an Operating Company, (2) the underlying assets of such Borrower do not constitute Plan Assets because less than twenty-five percent (25%) of the total value of each class of equity interests in such Borrower is held by “benefit plan investors” within the meaning of Section 3(42) of ERISA or (3) the underlying assets of such Borrower do not constitute Plan Assets because the equity interests issued by the Borrower, in which a “benefit plan investor” within the meaning of Section 3(42) of ERISA has an interest, are “publicly offered securities” within the meaning of the Plan Asset Regulation.

ERISA Certification. Prior to admitting one or more ERISA Investors which would result in twenty-five percent (25%) or more of the total value of any class of equity interests in a Borrower being held by “benefit plan investors” within the meaning of Section 3(42) of ERISA, such Borrower shall deliver either (A) a favorable written opinion of counsel addressed to Lenders and reasonably acceptable to Administrative Agent, regarding the status of such Borrower as an Operating Company (or a copy of such opinion addressed to the Investors or another Borrower, reasonably acceptable to Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to Administrative Agent) or (B) a certificate, addressed to the Administrative Agent, signed by a Responsible Officer of each such Borrower after consultation with nationally recognized ERISA counsel, stating that the underlying assets of such Borrower do not constitute Plan Assets because the equity interests issued by such Borrower, in which a “benefit plan investor” within the meaning of Section 3(42) of ERISA has such an interest, are “publicly offered securities” within the meaning of the Plan Asset Regulation; and (ii) with respect to each Borrower, no later than sixty (60) days after the first day of each “annual valuation period” (as defined in the Plan Asset Regulations) of such Borrower in the case of clause (1) below or thirty (30) days after the end of such Borrower’s fiscal year in the case of clause (2) or clause (3), below, a certificate signed by a Responsible Officer of such Borrower that (1) such Borrower has remained and still is an Operating CompanyCompany or, (2) the underlying assets of such Borrower do not constitute Plan Assets because less than twenty-five percent (25%) of the total value of each class of equity interests in such Borrower is held by “benefit plan investors” within the meaning of Section 3(42) of ERISA ERISA. or (3) the underlying assets of such Borrower do not constitute Plan Assets because the equity interests issued by the Borrower, in which a “benefit plan investor” within the meaning of Section 3(42) of ERISA has an interest, are “publicly offered securities” within the meaning of the Plan Asset Regulation.

ERISA Certification. Prior (i) If such Borrower has provided a certificate of a Responsible Officer pursuant to Section 6.1(p)(ii), Section 6.4(g)(ii) or Section 6.5(g)(ii) prior to admitting one or more ERISA Investors which would result in twenty-five percent (25%) or more of the total value of any class of equity interests in a such Borrower being held by “benefit plan investors” within the meaning of Section 3(42) of ERISAERISA and where the equity interests issued by such Borrower do not constitute “publicly offered securities” within the meaning of the Plan Asset Regulations, such Borrower shall deliver either (A) a favorable written opinion of counsel addressed to Lenders and the Secured Parties, reasonably acceptable to the Administrative AgentAgent and its counsel, regarding the status of such Borrower as an Operating Company (or a copy of such opinion addressed to the Investors or another BorrowerInvestors, reasonably acceptable to the Administrative Agent and its counsel, together with a reliance letter with respect thereto, addressed to Administrative Agent) or (B) a certificate, addressed to the Administrative Agent, signed by a Responsible Officer of each such Borrower after consultation with nationally recognized ERISA counsel, stating that the underlying assets of such Borrower do not constitute Plan Assets because the equity interests issued by such Borrower, in which a “benefit plan investor” within the meaning of Section 3(42) of ERISA has such an interest, are “publicly offered securities” within the meaning of the Plan Asset RegulationSecured Parties); and (ii) with respect to each such Borrower, for so long as it has any ERISA Investors, it shall provide to the Administrative Agent, no later than sixty (60) days after the first day of each “annual valuation period” (as defined in the Plan Asset Regulations) of such Borrower Annual Valuation Period in the case of clause (1) below or thirty (30) days after the end of such Borrower’s its fiscal year in the case of clause (2) or clause (3), below, a certificate signed by a Responsible Officer of such Borrower that (1) such Borrower has remained and still is an Operating Company, Company or (2) the underlying assets of such Borrower do not constitute Plan Assets because less than twenty-five percent (25%) of the total value of each class of equity interests in such Borrower is held by “benefit plan investors” within the meaning of Section 3(42) of ERISA or (3) that the underlying assets of such Borrower do not constitute Plan Assets because the equity interests issued by the such Borrower, in which a “benefit plan investor” within the meaning of Section 3(42) of ERISA has an interest, are “publicly offered securities” within the meaning of the Plan Asset RegulationRegulations.